L 72 - svar på spm. 3 om, om Europarådet nogen sinde har påtalt eller kritiseret kontraherende statsparter for en overtrædelse af statsborgerretskonventionen

Ministeren
Side 1/1
3. maj 2023
Udlændinge- og
Integrationsministeriet
Slotsholmsgade 10
1216 København K
Tel. 6198 4000
Mail uim@uim.dk
Web www.uim.dk
CVR-nr. 36977191
Sags nr. 2023 - 6641
Akt-id 2289214
Udlændinge- og Integrationsudvalget
Folketinget
Christiansborg
1240 København K
Udlændinge- og Integrationsudvalget har den 18. april 2023 stillet følgende spørgs-
mål nr. 3 til L 72 efter ønske fra ikkemedlem af udvalget (MFU) Mikkel Bjørn (DF) til
udlændinge- og integrationsministeren, som hermed besvares.
Spørgsmål nr. 3:
Vil ministeren i forlængelse af ministerens besvarelse på L 72 - spm. 1 redegøre for,
om Europarådet nogensinde har kritiseret eller påtalt en kontraherende statsparter
for overtrædelse af statsborgerretskonventionen, og vil ministeren i bekræftende
fald redegøre for denne kritik eller påtale?
Svar:
Udlændinge- og Integrationsministeriet har identificeret et eksempel på en dom fra
Den Europæiske Menneskerettighedsdomstol (Tănase mod Moldova (7/08)), hvor
det fremgår, at Moldova, der har ratificeret statsborgerretskonventionen, er blevet
kritiseret af bl.a. Europarådets Parlamentariske Forsamling i forbindelse med en
valgreform i landet, som blev set som uforenelig med statsborgerretskonventio-
nens artikel 17 om lige rettigheder for personer med dobbelt statsborgerskab.
Dommen vedlægges.
Udlændinge- og Integrationsministeriet kan oplyse, at statsborgerretskonventio-
nen behandles i en række forskellige organer under Europarådet. Det har derfor
ikke været muligt inden for fristen at gennemgå samtlige udtalelser mv. fra de for-
skellige organer, og det kan derfor ikke udelukkes, at der findes yderligere eksem-
pler på, at Europarådet har udtrykt en form for kritik eller påtale af en statspart til
statsborgerretskonventionen.
Kaare Dybvad Bek
/
Christine V. Johansen
Offentligt
L 72 - endeligt svar på spørgsmål 3
Udlændinge- og Integrationsudvalget 2022-23 (2. samling)


GRAND CHAMBER
CASE OF TĂNASE v. MOLDOVA
(Application no. 7/08)
JUDGMENT
STRASBOURG
27 April 2010
Offentligt
L 72 - endeligt svar på spørgsmål 3
Udlændinge- og Integrationsudvalget 2022-23 (2. samling)
TĂNASE v. MOLDOVA JUDGMENT 1
In the case of Tănase v. Moldova,
The European Court of Human Rights, sitting as a Grand Chamber
composed of:
Peer Lorenzen, President,
Françoise Tulkens,
Josep Casadevall,
Ireneu Cabral Barreto,
Corneliu Bîrsan,
Rait Maruste,
Vladimiro Zagrebelsky,
Elisabeth Steiner,
Dean Spielmann,
Sverre Erik Jebens,
Ján Šikuta,
Dragoljub Popović,
Isabelle Berro-Lefèvre,
Päivi Hirvelä,
George Nicolaou,
Zdravka Kalaydjieva,
Mihai Poalelungi, judges,
and Michael O’Boyle, Deputy Registrar,
Having deliberated in private on 16 September 2009 and on 10 March
2010,
Delivers the following judgment, which was adopted on the last-
mentioned date:
PROCEDURE
1. The case originated in an application (no. 7/08) against the Republic
of Moldova lodged with the Court under Article 34 of the Convention for
the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by two Moldovan and Romanian nationals, Mr Alexandru
Tănase and Mr Dorin Chirtoacă (“the applicants”), on 27 December 2007.
2. The applicants were represented by Ms J. Hanganu, a lawyer
practising in Chişinău. The Moldovan Government (“the Government”)
were represented by their Agent, Mr V. Grosu.
3. The applicants alleged, in particular, a breach of their right to stand as
candidates in free elections and to take their seats in Parliament if elected,
thus ensuring the free expression of the opinion of the people in the choice
of the legislature as guaranteed by Article 3 of Protocol No. 1. They also
complained under Article 14 taken in conjunction with Article 3 of Protocol
No. 1.
2 TĂNASE v. MOLDOVA JUDGMENT
4. The application was allocated to the Fourth Section of the Court
(Rule 52 § 1 of the Rules of Court). In a joint decision and judgment dated
18 November 2008, a Chamber of that Section, composed of Nicolas
Bratza, Lech Garlicki, Giovanni Bonello, Ljiljana Mijović, Davíd Thór
Björgvinsson, Ledi Bianku and Mihai Poalelungi, judges, and Fatoş Aracı,
Deputy Section Registrar, found, by a majority, the application in respect of
Mr Chirtoacă inadmissible; declared, unanimously, the application in
respect of Mr Tănase admissible; held, unanimously, that there had been a
violation of Article 3 of Protocol No. 1; and found, unanimously, that it was
not necessary to examine separately the complaint under Article 14 taken in
conjunction with Article 3 of Protocol No. 1.
5. On 6 April 2009, following a request by the Government, the panel of
the Grand Chamber decided to refer the case to the Grand Chamber in
accordance with Article 43 of the Convention.
6. The composition of the Grand Chamber was determined according to
the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24.
Judge Jean-Paul Costa was unable to attend the second deliberations.
Judge Peer Lorenzen took over the presidency of the Grand Chamber in the
examination of the application and Judge Corneliu Bîrsan, first substitute,
became a full member (Rule 11).
7. The remaining applicant, Mr Tănase, and the Government each filed
observations on the merits. In addition, third-party comments were received
from the Romanian Government, which had exercised its right to intervene
(Article 36 § 1 of the Convention and Rule 44 § 1 (b)).
8. A hearing took place in public in the Human Rights Building,
Strasbourg, on 16 September 2009 (Rule 59 § 3).
There appeared before the Court:
(a) for the Government
MR V. GROSU, Agent;
(b) for the applicant
Ms J. HANGANU, Counsel;
(c) for the Romanian Government
MR R.-H. RADU, Agent,
MS D. TASE,
MS I. POPESCU,
MS I. CIOPONEA, Advisers.
The Court heard addresses by Mr Grosu, Ms Hanganu and Mr Radu.
TĂNASE v. MOLDOVA JUDGMENT 3
9. Following developments subsequent to the hearing (see paragraphs
68-70 below), the applicant advised that he did not wish the case to be
struck out of the Court’s list.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
10. The applicant was born in 1971 and lives in Chişinău. He is
ethnically Romanian and is a Moldovan politician.
A. Historical background
11. The Principality of Moldavia first emerged as an independent State
in 1359. Its territory covered the area between the Eastern Carpathian
Mountains, the Dniester River and the Black Sea; today, this area
encompasses Moldova, part of Romania and part of Ukraine. Its population
spoke the same language and was of the same descent as the populations of
Wallachia and Transylvania (both part of modern-day Romania).
12. In the fifteenth century, Moldavia accepted the suzerainty of the
Ottoman Empire.
13. Following the Russo-Turkish war of 1806 to 1812, the eastern part
of the Principality of Moldavia, bounded by the Dniester River on the east
and the River Prut on the west, was annexed by the Russian empire. It was
renamed Bessarabia.
14. In 1859, the western part of the Principality of Moldavia united with
Wallachia and formed a new State. From 1861, the new State was known as
Romania. In 1877, Romania gained independence from the Ottoman
Empire.
15. In early 1918, Bessarabia declared its independence from Russia
and, on 27 March 1918, united with Romania. The population of Bessarabia
became Romanian citizens.
16. The Soviet Union did not recognise the unification of Bessarabia and
Romania. On 28 June 1940, following the Molotov-Ribbentrop Pact with
Nazi Germany, the Soviet Union re-annexed the territory of Bessarabia.
17. Following the conclusion of the Second World War, approximately
70% of the territory of Bessarabia, inhabited by some 80% of its population,
became the Moldavian Soviet Socialist Republic (changed to the Soviet
Socialist Republic of Moldova in 1990). The remaining territory of
Bessarabia became part of the Ukrainian Soviet Socialist Republic. Those
4 TĂNASE v. MOLDOVA JUDGMENT
residing in Bessarabia lost their Romanian nationality and became Soviet
citizens. Romania became a Soviet Union satellite State.
18. Following the collapse of the Soviet Union, in the Declaration of
Independence of 27 August 1991, the Parliament of the Republic of
Moldova condemned, inter alia, the Russian annexation of the territory
from the Principality of Moldavia in 1812 and the Soviet annexation of the
territory from Romania in 1940 and proclaimed the independence of the
country within the boundaries of the former Moldavian Soviet Socialist
Republic. Shortly thereafter, Moldova joined the United Nations and was
recognised by the international community.
B. Nationality post-independence
19. In 1991 the Parliament of the Republic of Moldova adopted a Law
on citizenship and proclaimed as its citizens, inter alios, all persons who
had lived in the territory of the former Moldavian Soviet Socialist Republic
before the Soviet annexation and their descendants.
20. The applicant obtained Moldovan nationality as a descendant of
persons living on the territory of the Republic of Moldova before 28 June
1940.
21. Also in 1991, the Romanian Parliament adopted a new Law on
citizenship, making it possible for persons who had lost their Romanian
nationality before 1989, for reasons not imputable to them, and their
descendants to reacquire Romanian nationality.
22. Initially, under Article 18 of the Moldovan Constitution adopted on
29 July 1994, which entered into force on 27 August 1994, nationals of
Moldova were not permitted to hold the nationality of any other State other
than in exceptional cases. However, the prohibition was ineffective in
practice as many Moldovans of Romanian descent used the provisions of
Romanian law to reacquire their lost Romanian nationality. At the same
time, many Moldovans of other ethnic backgrounds acquired other
nationalities such as Russian, Ukrainian, Bulgarian and Turkish.
23. In 2002 the Moldovan constitutional provisions prohibiting multiple
nationalities were repealed.
24. On 5 June 2003, following the repeal of the constitutional
prohibition on multiple nationalities, the Moldovan Parliament amended the
Law on citizenship, repealing the restriction preventing Moldovan nationals
from holding other nationalities (see paragraph 74 below). The new
provisions provided that the holders of multiple nationalities had equal
rights to those holding only Moldovan nationality, without exception (see
paragraph 75 below).
25. On an unspecified date the applicant obtained Romanian nationality.
His current Romanian passport was issued in December 2005.
Subsequently, he made public his holding of Romanian nationality.
TĂNASE v. MOLDOVA JUDGMENT 5
26. The total number of Moldovans who have obtained Romanian
citizenship since 1991 is unknown as the Romanian government have never
made this information public. However, it has been estimated that between
95,000 and 300,000 Moldovans obtained Romanian nationality between
1991 and 2001. On 4 February 2007 the President of Romania stated in an
interview that there were some 800,000 Moldovans with pending
applications for Romanian nationality and that his government expected the
number to reach 1,500,000, of the total of 3,800,000 Moldovan citizens,
before the end of 2007.
27. As to the number of Moldovans holding a second nationality other
than Romanian, this figure is also unknown. However, it appears to be
considerable and it seems that Russian nationality is the second most
popular, after Romanian. On 16 September 2008 the Russian Ambassador
to Moldova stated in a televised interview that there were approximately
120,000 Moldovans with Russian passports on both banks of the Dniester
River (i.e. in the whole of Moldova).
28. The Moldovan Government indicated in their observations before
the Chamber that one-third of the population of Transdniestria had dual
nationality, while a communist member of parliament (MP), Mr V. Mişin,
advanced during Parliament’s debates concerning Law no. 273 (see
paragraphs 78-81 below) the number of 500,000 as an approximate total
number of Moldovans with dual nationality.
C. Overview of the political evolution of Moldova prior to the
electoral reform in 2008
29. During the last decade and prior to the elections of 2009, the
Communist Party of Moldova was the dominant political party in the
country with the largest representation in Parliament.
30. Besides the Communist Party, there were over twenty-five other
political parties in the country with considerably less influence. Their exact
number was difficult to ascertain because of constant fluctuation. Because
of their weaker position, very few of them managed to clear the 6%
electoral threshold required in past legislative elections to enter Parliament.
31. In the 2001 elections the Christian Democratic People’s Party was
the only party aside from the Communist Party, from the twenty-seven
parties participating in the elections, which succeeded in clearing the
electoral threshold alone by obtaining some 8% of the vote. Six other parties
merged into an electoral bloc (a common list) and in this way were able to
obtain some 13% of the vote. The Communist Party obtained some 50% of
the vote and, after the proportional distribution of the wasted votes, obtained
71 of the 101 seats in Parliament.
32. In 2002 the electoral legislation was amended. The 6% electoral
threshold for a single party was retained but a new 9% threshold was
6 TĂNASE v. MOLDOVA JUDGMENT
introduced for electoral blocs composed of two parties, rising to 12% for
three or more parties.
33. In the 2005 elections, out of twenty-three participating parties, the
Christian Democratic People’s Party was again the only party, besides the
Communist Party, which managed to clear the electoral threshold by itself
with some 9% of the vote. Three other parties, united into an electoral bloc,
obtained some 28% of the vote, while the Communist Party obtained almost
46% of the vote. After the proportional distribution of the wasted votes, the
Communist Party obtained 56 of the 101 seats in Parliament.
34. In July 2005, following persistent criticism by international
observers and the Council of Europe, Parliament again amended the
Electoral Code, setting the electoral threshold for individual parties at 4%
and for electoral blocs composed of any number of parties at 8%. The
European Commission for Democracy through Law of the Council of
Europe (the Venice Commission) and the Organization for Security and
Co-operation in Europe (OSCE) praised the lowering of the electoral
threshold for individual parties and suggested a similar threshold for
electoral blocs, which, in their view, were to be encouraged in order to
provide more cooperation and stable government.
35. In the local elections of June 2007, the Communist Party obtained
some 40% of the vote in the local legislative bodies. As there is no electoral
threshold in local elections, it became an opposition party in the majority of
the local councils. The applicant became a member of the Chişinău
Municipal Council following these elections.
36. The applicant was subsequently elected Vice-President of the Liberal
Democratic Party, an opposition party created in January 2008.
D. The 2008 electoral reform
37. On 10 April 2008 the Moldovan Parliament passed a reform
consisting of three major amendments to the electoral legislation: an
increase of the electoral threshold from 4% back to 6%; a ban on all forms
of electoral blocs and coalitions; and a ban on persons with dual or multiple
nationality becoming MPs.
38. The amendment banning those with dual or multiple nationalities
becoming MPs was introduced by way of Law no. 273 (see paragraphs 78-
80 below). This Law was approved in its first reading by Parliament on
11 October 2007. The draft, prepared by the Ministry of Justice, provided
that only persons having exclusively Moldovan citizenship were entitled to
work in senior positions in the government and in several public services
and be candidates in legislative elections (see paragraph 78 below). It
contained a specific provision relating to Transdniestria (see paragraphs 80-
81 below).
TĂNASE v. MOLDOVA JUDGMENT 7
39. In an explanatory note to the draft law, the Deputy Minister of
Justice stated:
“Having analysed the current situation in the country in the field of citizenship, we
observe that the tendency of Moldovans to obtain citizenships of other countries is
explained by their desire to obtain privileges consisting of unrestrained travel in the
European Union, social privileges, family reunion, employment and studies.
At the same time, persons holding other nationalities have political and legal
obligations towards those States. This fact could generate a conflict of interest in cases
in which there are obligations both towards the Republic of Moldova and towards
other States, whose national a particular person is.
In view of the above, and with a view to solving the situation created, we consider it
reasonable to amend the legislation in force so as to ban holders of multiple
nationalities from public functions ...
This will not mean, however, that those persons will not be able to work in the
Republic of Moldova. They will be able to exercise their professional activities in
fields which do not involve the exercise of State authority ...”
40. During the debates in Parliament numerous opposition members
requested that the draft law be sent to the Council of Europe for a
preliminary expertise. However, the majority voted against this proposal.
Instead, the opposition was invited to challenge the new Law before the
Constitutional Court of Moldova. No such challenge was made at that time
(but see paragraphs 54-58 below). Numerous MPs from the opposition
argued that the proposed amendment banning multiple nationals from sitting
as MPs was contrary to Article 17 of the European Convention on
Nationality (see paragraphs 83-85 below) but the Deputy Minister of Justice
expressed a contrary view and argued that, in any event, it was open to
Parliament to denounce that Convention if there were any incompatibility.
41. On 7 December 2007 the draft law was approved by Parliament in a
final reading (see paragraph 78 below). Following its adoption by
Parliament, however, the President refused to promulgate the Law and
returned it to Parliament for re-examination.
42. The draft law was accordingly further amended and the list of
positions in the government and in the public service closed to holders of
multiple nationalities was reduced. The provisions concerning legislative
elections were also amended to allow persons with dual or multiple
nationality to be candidates in legislative elections; however, they were
obliged to inform the Central Electoral Commission about their other
nationalities before registering as candidates and to renounce them, or
initiate a procedure to renounce them, before the validation of their MP
mandates by the Constitutional Court (see paragraph 79 below).
43. On 10 April 2008 the new draft law was again put before Parliament
by the Law Commission of Parliament. As noted above, it was adopted on
that date. In the light of the amendments made by Law no. 273, an
8 TĂNASE v. MOLDOVA JUDGMENT
exception was introduced to the provision in the Law on citizenship
concerning equality of citizens to allow different treatment where provided
for by law (see paragraphs 24 above and 75 below)
44. On 29 April 2008 the President promulgated the Law adopted by
Parliament on 10 April 2008. On 13 May 2008 the Law was published in
the Official Gazette, thus entering into force. The other two amendments to
the electoral legislation (see paragraph 37 above) were also enacted and
entered into force in May 2008.
E. International reactions to the electoral reform
1. The Council of Europe’s European Commission against Racism and
Intolerance
45. On 29 April 2008 the Council of Europe’s European Commission
against Racism and Intolerance (ECRI) made public a report adopted on
14 December 2007. In its report, ECRI expressed concern about the
amendments concerning dual and multiple nationalities:
“16. ECRI notes with interest that section 25 of the Law on citizenship, in full
accordance with Article 17 of the European Convention on Nationality, which has
been ratified by Moldova, provides that Moldovan citizens who are also citizens of
another State and who have their lawful and habitual residence in Moldova enjoy the
same rights and duties as other Moldovan citizens. In this respect, ECRI would like to
express its concern about a draft law on the modification and completion of certain
legislative acts adopted in its first reading by Parliament on 11 October 2007.
According to this draft law, only persons having exclusively Moldovan citizenship are
entitled to work in senior positions in the government and in several public services.
From the information it has received, ECRI understands that if this draft law enters
into force as it stands, Moldovan citizens with multiple citizenship would be seriously
disadvantaged compared with other Moldovan citizens in access to public functions. It
thus appears that, if the law enters into force as such, this could lead to discrimination,
i.e. unjustified differential treatment on the grounds of citizenship. ECRI understands
that a wide-ranging debate is occurring within Moldova at the time of writing this
report as far as this draft law is concerned and that many sources both at the national
and international level have stressed the need to revise the text thoroughly before its
final adoption in order to ensure its compatibility with national and international
standards.
...
18. ECRI strongly recommends that the Moldovan authorities revise the draft law
of 11 October 2007 ... in order to ensure that it neither infringes the principle of non-
discrimination on the grounds of citizenship nor undermines all benefits of the recent
changes made to the Law on citizenship and allowing for multiple citizenship.”
TĂNASE v. MOLDOVA JUDGMENT 9
2. The Council of Europe Parliamentary Assembly’s Committee on the
Honouring of Obligations and Commitments by Member States of
the Council of Europe
46. In a report dated 14 September 2007, entitled “Honouring of
obligations and commitments by Moldova”, the Parliamentary Assembly’s
Committee on the Honouring of Obligations and Commitments by Member
States of the Council of Europe (“the Monitoring Committee”) noted the
following:
“20. The Assembly appreciates the efforts made by the Moldovan authorities in
order to assess the degree of implementation of the recommendations made by
Council of Europe experts. However, all new draft legislation in areas relating to the
commitments to the Council of Europe must be submitted to expertise and discussed
with Council of Europe experts prior to adoption.”
47. In its subsequent report of 9 June 2008, entitled “The state of
democracy in Europe: the functioning of democratic institutions in Europe
and progress of the Assembly’s monitoring procedure”, the Monitoring
Committee stated, inter alia, that:
“80. In their 2007 report on the ‘Honouring of obligations and commitments by
Moldova’ (Doc. 11374), the co-rapporteurs of the Committee on Moldova welcomed
the changes made to the Electoral Code in 2005. In particular, the threshold for party
lists was lowered to 4% for lists presented by individual political parties and 8% for
coalitions of political parties ...
...
82. The Monitoring Committee was ... alarmed by the recent legislative
developments with regard to the Electoral Code. In April 2008, the Moldovan
Parliament amended the Electoral Code again to raise the threshold for party lists up
to 6%. Moreover, the establishment of ‘electoral blocs’ – joint lists submitted by a
coalition of political parties – was prohibited. These measures have raised concern
and the Committee decided at short notice to hold an exchange of views with the
Moldovan delegation on 15 April [2008]. The electoral legislation should not be
changed every two or three years according to political imperatives. It should allow a
wide spectrum of political forces to participate in the political process to help build
genuinely pluralistic democratic institutions. The co-rapporteurs will closely examine
the recent amendments as well as the reasons behind the recent legislative
developments during the observation of the preparation of the forthcoming
parliamentary election to be held in spring 2009.”
3. The Parliamentary Assembly of the Council of Europe
48. Concern was also expressed by the Parliamentary Assembly in its
Resolution 1619 (2008) on the state of democracy in Europe, adopted on
25 June 2008:
“5.3. ... [T]he Assembly ... regrets the recent decision of the Moldovan Parliament
to raise this threshold for party lists to 6%.”
10 TĂNASE v. MOLDOVA JUDGMENT
49. In Resolution 1666 (2009) on the functioning of democratic
institutions in Moldova, the Parliamentary Assembly expressed its serious
concern:
“3. The Assembly is seriously concerned about the Moldovan authorities’ partial
compliance with its earlier recommendations regarding the improvement of the
electoral process and the strengthening of the State’s democratic institutions before
the parliamentary elections of 5 April 2009. The amendments introduced to the
Electoral Code in April 2008 raised the electoral threshold from 4% to 6%, did not
provide for electoral coalitions of political parties and socio-political organisations
and introduced a ban on the exercise of elevated public functions by Moldovan
citizens holding multiple nationality. The combined effect of these amendments was
to restrict the opportunities for a number of political forces to participate effectively in
the political process, thus weakening pluralism.”
50. It called on Moldova to do the following:
“8.1. resume reform of the electoral legislation, in cooperation with the European
Commission for Democracy through Law (Venice Commission), in order to lower the
electoral threshold for political parties, thus opening up the political process for more
pluralism; ...
8.2. suspend the application of Articles of the Electoral Code prohibiting people
who hold multiple citizenship from exercising elevated public functions, while
awaiting the judgment of the Grand Chamber of the European Court of Human Rights
in the case of Tănase and Chirtoacă v. the Republic of Moldova.”
4. The European Commission for Democracy through Law (the Venice
Commission)
51. On 23 October 2008 the Venice Commission made public a report
adopted on 17 to 18 October 2008 (Opinion no. 484/2008) concerning the
amendments to the Electoral Code made in April 2008. The report
expressed critical views in respect of all the aspects of the reform. As to the
amendments concerning holders of multiple nationalities it stated the
following:
“30. A new paragraph to Article 13 § 2 denies the right to ‘be elected’ in
parliamentary elections to ‘persons who have, beside the Republic of Moldova
nationality, another nationality for the position of deputy in the conditions of
Article 75’. Article 75 § 3 states that a person may stand as a candidate with multiple
citizenship, provided he/she upon election denounces other citizenships than the
Moldovan. This must be considered as an incompatibility.
31. Beyond the mere question of the wording, restrictions of citizens’ rights should
not be based on multiple citizenship. The Code of Good Practice in Electoral Matters
quotes the European Convention on Nationality, ratified by Moldova in
November 1999, which unequivocally provides that ‘Nationals of a State Party in
possession of another nationality shall have, in the territory of that State Party in
which they reside, the same rights and duties as other nationals of that State Party’.
TĂNASE v. MOLDOVA JUDGMENT 11
32. Moreover, this restriction could be a violation of the Convention for the
Protection of Human Rights and Fundamental Freedoms, Articles 3 of [Protocol
No. 1] and 14 of the Convention.”
5. Other international criticism
52. On 27 May 2008, at a meeting of the European Union-Moldova
Cooperation Council in Brussels, the Slovenian Minister for Foreign
Affairs, the then President of the European Union General Affairs and
External Relations Council, stated that it was important that Moldova
conduct its parliamentary elections in 2009 in line with international
standards and expressed concern at the latest amendments to the electoral
law, which increased the electoral threshold to 6%.
53. Concerns about the electoral reform were also raised on 9 July 2008
by the President of the Parliamentary Assembly of the Council of Europe in
a speech to the Moldovan Parliament:
“... I strongly encourage you to obtain the approval by the Venice Commission in
respect of the recent amendments to the legislation which will apply in the next
elections, namely in what concerns the electoral threshold, the electoral blocs and the
dual nationality. These are delicate problems and it is necessary to find the right
balance between the preoccupations which guided you to make these amendments and
the concern of the international community that these amendments are compatible
with the principles of the Council of Europe.”
F. Challenge before the Constitutional Court
54. On 9 December 2008, Mr Vlad Filat, President of the Liberal
Democratic Party, addressed a complaint to the Constitutional Court
alleging that Law no. 273 was unconstitutional.
55. On 26 May 2009 the Constitutional Court delivered a judgment on
the constitutionality of Law no. 273. It found the Law to be constitutional
and valid in its entirety. It held that the provisions of the Law were clear and
unambiguous, that they were accessible in that they were published in the
Official Gazette and that they were foreseeable as they enabled, with
sufficient precision, Moldovan citizens wishing to stand for Parliament but
holding another nationality to adopt appropriate social-minded conduct to
ensure that their rights were not curtailed. It emphasised that Law no. 273
did not prevent dual nationals from becoming MPs as it offered them the
possibility of complying with the law. It further considered the provisions of
the Law to be in conformity with norms of international law, concluding
that the various international instruments permitted States to stipulate
incompatibilities relating to the holding of multiple nationalities by public
officials.
56. The court also found Law no. 273 to be in pursuit of a legitimate
aim, namely loyalty to the Moldovan State, in the light of the importance of
12 TĂNASE v. MOLDOVA JUDGMENT
State sovereignty and the need for a permanent political and legal link
between an elector and the State. It considered that for Moldovan citizens
holding the nationality of another State, the significance of Moldovan
citizenship was substantially diminished as such a person might not be
guided only by the constitutional requirements of Moldova and the interests
of the Moldovan people but also by the interests of a foreign State.
Accordingly, allowing MPs to hold dual nationality was contrary to the
constitutional principle of the independence of the mandate of MPs, State
sovereignty, national security and the non-disclosure of confidential
information. In this regard, the court insisted that ensuring national security
and consolidating Moldovan statehood had become an urgent necessity in
the light of movements to undermine the Moldovan State.
57. The court also considered the interference to be proportionate since
it did not affect the substance of electoral rights but merely made the
exercise of the right to be an MP conditional upon holding exclusive
Moldovan citizenship. Citizens could choose between holding a job which
required single citizenship and retaining their multiple citizenships but
working in a different post.
58. As regards the argument that Law no. 273 resulted in unequal
treatment of Moldovan citizens, the court considered that the principle of
equality should not be confused with the principle of uniformity. Those
holding multiple nationalities were not in the same position as those holding
single Moldovan nationality and the two cases were therefore not
comparable.
G. Political developments following the 2008 electoral reform
59. On 5 April 2009 legislative elections were held. The Communist
Party obtained 60 seats in Parliament. The three opposition parties gained
41 seats altogether: the Liberal Democratic Party and the Liberal Party
obtained 15 seats each; and the Our Moldova Alliance obtained 11 seats. Of
the 101 MPs elected, 21 held more than one nationality or had pending
applications for a second nationality and were therefore affected by the
provisions of Law no. 273. All 21 MPs were members of opposition parties.
60. In the April elections, the applicant was elected to the Moldovan
Parliament. In order to be able to take his seat, he was required to initiate a
procedure to renounce his Romanian nationality. He did this by way of a
letter addressed to the Romanian embassy in Chişinău announcing that he
was forced to initiate the renunciation of his Romanian nationality, but
indicating that he reserved his right to withdraw the letter after the judgment
of the Grand Chamber in the present case.
61. On 22 April 2009 the Constitutional Court validated the applicant’s
mandate, taking into consideration his letter to the Romanian embassy.
TĂNASE v. MOLDOVA JUDGMENT 13
62. The Communist Party subsequently sought to elect a president of the
Republic. However, on two separate occasions they failed to obtain the 61
Parliamentary votes required for the election of the president. Accordingly,
on 15 June 2009, Parliament was dissolved. Fresh parliamentary elections
were called for 29 July 2009.
63. Prior to the dissolution of Parliament, it once again amended the
electoral legislation, lowering the electoral threshold from 6% to 5% and
lowering the mandatory rate of participation from 51% to one-third of
registered voters. The opposition expressed concern about the amendments,
arguing that they were intended to help the Christian Democratic People’s
Party, an ally of the Communist Party in the previous Parliament, clear the
electoral threshold and enter Parliament.
64. In the meantime, a prominent figure from the Communist Party and
Speaker of the previous Parliament, Mr Marian Lupu, quit the Communist
Party and became the leader of a small party, the Democratic Party, which
had not cleared the electoral threshold in the April 2009 elections.
65. In the elections of 29 July 2009, five parties cleared the electoral
threshold: the Communist Party obtained 48 seats; the Liberal Democratic
Party obtained 18 seats; the Liberal Party obtained 15 seats; the Democratic
Party obtained 13 seats; and the Our Moldova Alliance obtained 7 seats.
The latter four parties formed a coalition called the Alliance for European
Integration. The coalition had 53 seats in total and thus a majority in
Parliament.
66. The applicant was re-elected. His mandate was subsequently
confirmed by the Constitutional Court, upon production of the documents
showing that he had initiated a procedure to renounce his Romanian
nationality (see paragraph 60 above).
67. The majority elected Mr Mihai Ghimpu as Speaker on 28 August
2009. On 11 September 2009 the President of Moldova, Mr Vladimir
Voronin, resigned. Under the Moldovan Constitution, Mr Ghimpu, in his
capacity as Speaker, assumed the role of acting President until the election
of a president in due course.
68. Since 25 September 2009 Moldova has been governed by the
Alliance for European Integration coalition. On that date, Mr Vlad Filat was
formally appointed Prime Minister and a number of ministers were also
formally appointed. The applicant was appointed Minister of Justice. Under
Moldovan law, the applicant will retain his mandate as an MP for six
months following his appointment as Minister.
69. On 10 November 2009 Parliament made a first attempt to elect
Mr Marian Lupu as President. Mr Lupu was not elected as the required
61 votes in favour were not obtained. The Communist Party refused to
participate in the vote. A second attempt to elect a president was made on
7 December 2009. Again, the attempt was unsuccessful as a result of the
failure to obtain the 61 votes required.
14 TĂNASE v. MOLDOVA JUDGMENT
70. Under the Moldovan Constitution, in the light of the failure of the
coalition to elect a president, fresh parliamentary elections will have to be
held.
II. RELEVANT DOMESTIC LAW
A. The position of international treaties in Moldova
71. Article 4 of the Constitution of the Republic of Moldova reads:
“1. Constitutional provisions for human rights and freedoms shall be understood
and implemented in accordance with the Universal Declaration of Human Rights, and
with other conventions and treaties to which the Republic of Moldova is a party.
2. Wherever inconsistencies appear between human rights conventions and treaties
signed by the Republic of Moldova and its own national laws, international
regulations shall prevail.”
72. Article 8 of the Constitution provides that:
“1. The Republic of Moldova is obliged to respect the United Nations Charter and
the treaties to which it is a party ...”
73. The relevant provisions of Law no. 595-XIV on international treaties
of the Republic of Moldova read:
Section 19
Compliance with international treaties
“International treaties shall be complied with in good faith, in accordance with the
principle pacta sunt servanda. The Republic of Moldova cannot invoke the provisions
of its internal legislation as a justification for non-compliance with an international
treaty to which it is a party.”
Section 20
The application of international treaties
“The provisions of the international treaties which, according to their wording, are
susceptible to be applicable without there being need for enactment of special
legislative acts, shall have an enforceable character and shall be directly applied in the
Moldovan law system. For the realisation of other provisions of the treaties, special
normative acts shall be adopted.”
B. The Law on citizenship of the Republic of Moldova
74. According to section 24 of the Law on citizenship of the Republic of
Moldova (Law no. 1024 of 2 June 2000), as amended on 5 June 2003,
multiple nationalities are permitted in Moldova and the acquisition by a
TĂNASE v. MOLDOVA JUDGMENT 15
Moldovan national of another nationality does not entail loss of the
Moldovan nationality.
75. Section 25 provides that Moldovan citizens who reside lawfully and
habitually in the territory of Moldova and hold the nationality of another
State shall enjoy the same rights and duties as the other citizens of Moldova.
Law no. 273 inserted an exception to the principle in section 25 of equal
treatment of all citizens “in cases provided for by law”.
76. Section 39 provides for an oath of allegiance to be sworn by those
granted citizenship of Moldova through naturalisation or reacquisition of
nationality. The oath states:
“I (surname, first name), born (time and place of birth), swear to be a faithful citizen
of the Republic of Moldova, to respect its Constitution and other laws and not to take
any actions that would prejudice the interests and territorial integrity of the State.”
C. The right to vote and stand for election
77. On the right to vote and to be elected, the relevant parts of the
Constitution provide:
Article 38
The right to vote and to be elected
“...
3. The right to be elected is guaranteed to Moldovan citizens who enjoy the right to
vote, within the conditions of the law.”
Article 39
The right to participate in the administration
“1. The citizens of Moldova shall have the right to participate in the administration
of public affairs in person or through their representatives.
2. Every citizen shall have access, in accordance with the law, to public functions.”
78. Law no. 273 set out amendments to the electoral legislation.
Section 10 of the draft law adopted by Parliament on 7 December 2007 but
not promulgated by the President, proposed that the Electoral Code be
amended to include the following:
“Candidates for the office of MP shall be at least 18 years old on the day of the
elections, shall have exclusively Moldovan citizenship, shall live in the country and
shall fulfil the conditions provided for in the present code.”
79. Section 9 of the final version of Law no. 273, which came into force
on 13 May 2008, introduces the following provisions into the Electoral
Code:
16 TĂNASE v. MOLDOVA JUDGMENT
“(1) Candidates for the office of MP shall be at least 18 years old on the day of the
elections, shall have Moldovan citizenship, shall live in the country and shall fulfil the
conditions provided for in the present code.
(2) At the moment of registering as a candidate, any person holding the citizenship
of another country shall declare that he or she holds another citizenship or that he or
she has applied for another citizenship.
(3) At the time of validation of the MP mandate, the person indicated in
paragraph (2) shall prove with documents that he or she has renounced or initiated the
procedure of renunciation of the citizenship of other States or that he or she has
withdrawn an application to obtain another citizenship.
(4) A failure to declare the fact of holding another citizenship at the moment of
registering as a candidate for the office of MP or the fact of obtaining another
citizenship during the exercise of an MP mandate, shall be sufficient grounds for the
Constitutional Court to annul the MP mandate at the request of the Central Electoral
Commission.”
80. The position of Transdniestria is set out in section 21 of the Law:
“ ...
(3) The incompatibilities provided for in the present Law shall apply to persons
living in Transdniestria only in so far as they are stipulated in the legislation
concerning the special legal status of Transdniestria.”
81. Limited parliamentary debate took place on this particular provision
of the Law. The only relevant extract, from the plenary parliament debates
on 7 December 2007, is as follows:
“Vladimir Braga, MP:
The citizens who are citizens of the Republic of Moldova and live in Transdniestria
will continue to have double nationality and then the effectiveness of the Law is
marginalised, or, to put it better, we reject the citizens from Transdniestria, who are
also citizens of the Republic of Moldova.
Vladimir Ţurcan, MP:
Not at all. There is one thing which has to be understood: firstly, this Law does not
apply to all citizens. Secondly, it refers only to those who have positions in public
authorities. Thirdly, we deliberately inserted here a clause in the final and transitional
provisions: I draw your attention to the fact that the third paragraph refers to persons
who live and work in the respective authorities of the left bank, in Transdniestria, that
this Law does not apply in this case to the said persons and that it will only be applied
[to them] in so far as this is provided for in the Law concerning the special status of
Transdniestria.”
TĂNASE v. MOLDOVA JUDGMENT 17
D. Access to the Constitutional Court
82. According to Article 38 of the Code of Constitutional Jurisdiction of
the Republic of Moldova, the Constitutional Court may be seized only by
the President of the country, the government, the Minister of Justice, the
Supreme Court of Justice, the Economic Court, the Prosecutor General, the
MPs, the parliamentary factions and the Ombudsman.
III. RELEVANT INSTRUMENTS OF THE COUNCIL OF EUROPE
A. The European Convention on Nationality
83. The Preamble to the Council of Europe European Convention on
Nationality (“the ECN”), which came into force in general and in respect of
Moldova on 1 March 2000, explains the purpose of the ECN. The relevant
parts of the Preamble provide:
“Recognising that, in matters concerning nationality, account should be taken both
of the legitimate interests of States and those of individuals;
...
Noting the varied approach of States to the question of multiple nationality and
recognising that each State is free to decide which consequences it attaches in its
internal law to the fact that a national acquires or possesses another nationality;
...”
84. Article 15 of the ECN sets out possible cases of multiple nationality
other than those which arise where individuals acquire multiple nationalities
automatically at birth or a second nationality automatically upon marriage.
It provides as follows:
“The provisions of this Convention shall not limit the right of a State Party to
determine in its internal law whether:
a. its nationals who acquire or possess the nationality of another State retain its
nationality or lose it;
b. the acquisition or retention of its nationality is subject to the renunciation or loss
of another nationality.”
85. On the rights and duties related to multiple nationality, Article 17
provides:
“Nationals of a State Party in possession of another nationality shall have, in the
territory of that State Party in which they reside, the same rights and duties as other
nationals of that State Party.
18 TĂNASE v. MOLDOVA JUDGMENT
The provisions of this chapter do not affect:
a. the rules of international law concerning diplomatic or consular protection by a
State Party in favour of one of its nationals who simultaneously possesses another
nationality;
b. the application of the rules of private international law of each State Party in
cases of multiple nationality.”
B. The Code of Good Practice in Electoral Matters of the Venice
Commission of the Council of Europe (CDL-AD (2002) 23 rev)
86. The Venice Commission has adopted a Code of Good Practice in
Electoral Matters. The relevant parts of the explanatory report to this code
read as follows:
“6b. [U]nder the European Convention on Nationality persons holding dual
nationality must have the same electoral rights as other nationals.
...
63. Stability of the law is crucial to credibility of the electoral process, which is
itself vital to consolidating democracy. Rules which change frequently – and
especially rules which are complicated – may confuse voters. Above all, voters may
conclude, rightly or wrongly, that electoral law is simply a tool in the hands of the
powerful, and that their own votes have little weight in deciding the results of
elections.
64. In practice, however, it is not so much stability of the basic principles which
needs protecting (they are not likely to be seriously challenged) as stability of some of
the more specific rules of electoral law, especially those covering the electoral system
per se, the composition of electoral commissions and the drawing of constituency
boundaries. These three elements are often, rightly or wrongly, regarded as decisive
factors in the election results, and care must be taken to avoid not only manipulation
to the advantage of the party in power, but even the mere semblance of manipulation.
65. It is not so much changing voting systems which is a bad thing – they can
always be changed for the better – as changing them frequently or just before (within
one year of) elections. Even when no manipulation is intended, changes will seem to
be dictated by immediate party political interests.”
IV. LAW AND PRACTICE IN THE COUNCIL OF EUROPE MEMBER
STATES
87. On the basis of the information available to the Court, it would seem
that, apart from Moldova, three countries (Azerbaijan, Bulgaria and
Lithuania) clearly ban dual nationals from being elected to Parliament. In
Azerbaijan and Lithuania, it is in any event prohibited to hold dual
TĂNASE v. MOLDOVA JUDGMENT 19
nationality; in Bulgaria, holding dual nationality is permitted. The
Constitution of a fourth country, Malta, provides that a person shall not be
qualified for election to the House of Representatives “if he is a citizen of a
country other than Malta having become such a citizen voluntarily or is
under a declaration of allegiance to such a country”; it is not entirely clear
whether the provision applies to non-nationals or to multiple nationals. In
any case, there are no known examples of the provision being enforced and
it is not clear whether it was intended that the limitation remain in force
after the law was amended to permit dual nationality in Malta in 2000.
Romania, which permits dual nationality, lifted its ban on dual nationals
becoming MPs in 2003.
88. In Latvia, there is no prohibition on MPs having dual nationality but
a person with dual nationality cannot be elected president. It should be
noted that dual nationality is prohibited in principle under Latvian law,
although it is allowed in certain limited circumstances. Monaco restricts
citizens from becoming members of the Conseil National if they hold public
or elected office in another State. Portugal prohibits non-resident dual
nationals from becoming MPs for the constituency covering the territory of
their other nationality.
89. In short, three member States of the Council of Europe – Bulgaria,
Malta and Moldova (subject to the ambiguity outlined above) – currently
allow dual nationality but prohibit dual nationals from becoming MPs. In
addition, Azerbaijan and Lithuania, which prohibit dual nationality, also
prohibit dual nationals becoming MPs. Of these four other countries,
Azerbaijan and Lithuania have not signed the ECN; Bulgaria has lodged a
reservation in respect of Article 17 of the ECN; and Malta has signed, but
not ratified, the ECN.
90. Twenty-seven States other than Moldova allow dual nationality. In
nineteen member States, dual citizenship is prohibited in principle. Dual
nationality is prohibited in Ukraine.
91. Estonia, Latvia and Lithuania prohibit dual nationality. According to
the census for the year 2000, there were around 200 dual nationals in
Estonia. There are around 700 dual nationals in Lithuania. No figures are
available for Latvia. Around a quarter of the population of Estonia and
Latvia is ethnically Russian.
92. In the States of the former Yugoslavia, Croatia, Serbia, Slovenia and
“the former Yugoslav Republic of Macedonia” allow dual citizenship,
although Croatia and Slovenia seek to exclude it for naturalised citizens. In
Bosnia and Herzegovina and Montenegro, dual nationality is permitted only
in respect of States with which a bilateral agreement has been concluded.
The populations of most of these States are ethnically mixed. Montenegro
(43% Montenegrin; 32% Serb; 8% Bosniak; 17% other) and Bosnia and
Herzegovina (48% Bosniak; 37.1% Serb; 14.3% Croat; 0.6% other) have
the most ethnically mixed populations, followed by “the former Yugoslav
20 TĂNASE v. MOLDOVA JUDGMENT
Republic of Macedonia” (64.2% Macedonian; 25.2% Albanian; 10.6%
other). The numbers of dual nationals in these countries is not known. None
of these States prohibit dual nationals from standing for Parliament.
93. In the twenty-seven member States of the European Union, sixteen
allow dual nationality, five prohibit it or allow it only in exceptional
circumstances (the Czech Republic, Denmark, Greece, Lithuania and
Poland) and six (Austria, Estonia, Germany, Latvia, the Netherlands and
Spain) allow it in certain circumstances, to varying extents. Two States –
Bulgaria and Lithuania – prohibit the election of dual nationals to
Parliament. Further limitations exist in three States (Latvia, Malta and
Portugal – see paragraphs 87-88 above).
THE LAW
94. The applicant alleged that the prohibition on Moldovan nationals
holding other nationalities sitting as members of parliament (MPs)
following their election interfered with his right to stand as a candidate in
free elections and to take his seat in Parliament if elected, thus ensuring the
free expression of the opinion of the people in the choice of the legislature.
He relied on Article 3 of Protocol No. 1, which provides:
“The High Contracting Parties undertake to hold free elections at reasonable
intervals by secret ballot, under conditions which will ensure the free expression of
the opinion of the people in the choice of the legislature.”
95. He also complained under Article 14 of the Convention taken in
conjunction with Article 3 of Protocol No. 1 that he had been subjected to
discrimination in comparison with Moldovan nationals holding multiple
nationalities and living in Transdniestria. Article 14 of the Convention
provides:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be
secured without discrimination on any ground such as sex, race, colour, language,
religion, political or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
TĂNASE v. MOLDOVA JUDGMENT 21
I. PRELIMINARY OBJECTIONS
A. Victim status
1. The Chamber’s conclusions
96. The Chamber referred to the Court’s previous case-law to the effect
that it was open to a person to contend that a Law violated his rights in the
absence of an individual measure of implementation if he was required to
modify his conduct or was a member of a class of people who risked being
directly affected by the legislation. It considered that the applicant was
directly affected by Law no. 273 because, if elected, he would have to make
the difficult choice between sitting as an MP or keeping his dual nationality.
Indeed, awareness of that difficult choice could have an adverse effect on
the applicant’s electoral campaign, both in terms of his personal investment
and effort and in terms of the risk of losing votes with the electorate. The
Chamber therefore dismissed the Government’s objection that the applicant
lacked victim status.
2. The parties’ submissions
(a) The Moldovan Government
97. The Government maintained in their submissions to the Grand
Chamber that the applicant was not a victim within the meaning of
Article 34 of the Convention because the case was lodged with the Court
before Law no. 273 had been promulgated. Relying on Očič v. Croatia
((dec.), no. 46306/99, ECHR 1999-VIII), they further contended that the
applicant’s claim was an actio popularis seeking review of legislation in the
abstract as at the time of his application to the Court, the Law in question
had never been applied to him to his detriment. The cases to which the
Chamber referred to support its conclusion that the applicant was a victim
were distinguished by the Government because, in those cases, unlike in the
present case, the Law being challenged had entered into force. Although the
Court had considered an applicant a potential victim of an enacted Law
which had never been applied to him, it had never before found an applicant
to be a victim or a potential victim of a draft law. The Government relied on
The Christian Federation of Jehovah’s Witnesses in France v. France
((dec.), no. 53430/99, ECHR 2001-XI), where the Court observed that it had
accepted the notion of a potential victim in cases where the applicant was
not in a position to demonstrate that the legislation about which he
complained had actually been applied to him because of the secret nature of
the measures it authorised (see Klass and Others v. Germany, 6 September
22 TĂNASE v. MOLDOVA JUDGMENT
1978, Series A no. 28); where a Law punishing homosexual acts was likely
to be applied to a certain category of the population, to which the applicant
belonged (see Dudgeon v. the United Kingdom, 22 October 1981, Series A
no. 45); and, lastly, where the forced removal of aliens had already been
decided on but not yet carried out and enforcement of the measure would
have exposed the persons concerned to the risk of treatment contrary to
Article 3 in the country of destination (see Soering v. the United Kingdom,
7 July 1989, Series A no. 161) or would have infringed the right to respect
for family life (see Beldjoudi v. France, 26 March 1992, Series A
no. 234-A). The Government argued that States Parties had not agreed when
ratifying the Convention that draft laws could be challenged before the
Court. If such challenges were possible, where there was no possibility at
domestic level to challenge a draft law applicants would be encouraged to
come directly to the Court, breaching the principle of subsidiarity and
leading to a large increase in the number of cases before the Court.
98. The Government further argued that a person with multiple
nationalities was allowed to stand for election in Moldova and merely had
to show, in order for his mandate to be approved by the Constitutional
Court, that he had initiated a renunciation procedure in respect of
nationalities other than Moldovan (see paragraph 79 above). There was no
provision in the Electoral Code which allowed an MP’s mandate to be
subsequently annulled on the ground that the renunciation procedure had
never been completed. In the present case, once the applicant’s mandate was
confirmed there was no way of annulling his mandate if he did not follow
through with the renunciation of his Romanian nationality.
(b) The applicant
99. The applicant acknowledged that his application to the Court was
submitted before Law no. 273 was officially enacted. However, he argued
that it had already been passed by Parliament (see paragraph 38 above) and
that it was therefore inevitable that the Law would be signed by the
President and would enter into force sooner or later. The Government were
given notice of the application by the Court on 17 June 2008, by which time
the contested Law was in force (see paragraph 44 above).
100. The applicant also pointed out that, following his election to
Parliament, he was not permitted to take his seat until he had begun the
procedure to renounce his Romanian citizenship (see paragraphs 60-61 and
66 above). Had he refused to initiate the procedure, he would have been
unable to sit as an MP.
101. The applicant accordingly invited the Court to find that he was a
victim of the contested legislation.
TĂNASE v. MOLDOVA JUDGMENT 23
(c) The Romanian Government
102. The Romanian Government contended that the applicant could be
considered a victim under Article 34 of the Convention. Relying on Klass
and Others (cited above, § 34), they argued that a person could be a victim
by virtue of the mere existence of measures or legislation, without having to
show that the measures or Law in question had been applied to him. They
noted that when the application was submitted to the Court, the applicant, a
politician, had expressed his intention to stand as a candidate in the 2009
elections. He therefore risked being affected by the new Law. In the event,
he was elected and was required to initiate a procedure to renounce his
Romanian nationality. The Romanian Government considered the Očič
case, cited by the respondent Government, to be irrelevant to the present
application because in that case, the applicant failed to demonstrate that he
could have been personally affected by the contested legislation. The
Romanian Government further relied on the fact that the Chamber gave its
judgment after the Law had been enacted. Accordingly, they argued, the
application did not concern a mere draft law.
103. The Romanian Government invited the Court to reject the objection
of the respondent Government.
3. The Court’s assessment
104. The Court reiterates that, in order to be able to lodge a petition by
virtue of Article 34, a person, non-governmental organisation or group of
individuals must be able to claim to be the victim of a violation of the rights
set forth in the Convention. In order to claim to be a victim of a violation, a
person must be directly affected by the impugned measure: the Convention
does not envisage the bringing of an actio popularis for the interpretation of
the rights it contains or permit individuals to complain about a provision of
national law simply because they consider, without having been directly
affected by it, that it may contravene the Convention. However, it is open to
a person to contend that a Law violates his rights, in the absence of an
individual measure of implementation, if he is required either to modify his
conduct or risks being prosecuted or if he is a member of a class of people
who risk being directly affected by the legislation (see Burden v. the United
Kingdom [GC], no. 13378/05, §§ 33 and 34, ECHR 2008; Open Door and
Dublin Well Woman v. Ireland, 29 October 1992, § 44, Series A no. 246-A;
and Klass and Others, cited above, § 33).
105. In Burdov v. Russia (no. 59498/00, § 30, ECHR 2002-III), the
Court held that the question whether or not the applicant could claim to be a
victim of the violation alleged was relevant at all stages of the proceedings
under the Convention (see also E. v. Austria, no. 10668/83, Commission
decision of 13 May 1987, Decisions and Reports (DR) 52, p. 177). The
Court notes that the provisions of the Convention are to be interpreted in a
24 TĂNASE v. MOLDOVA JUDGMENT
manner which renders its safeguards practical and effective (see, inter alia,
Soering, cited above, § 87, and Artico v. Italy, 13 May 1980, § 33, Series A
no. 37). In assessing whether an applicant can claim to be a genuine victim
of an alleged violation, account should be taken not only of the formal
position at the time when the application was lodged with the Court but of
all the circumstances of the case in question, including any developments
prior to the date of the examination of the case by the Court (see, mutatis
mutandis, Akdivar and Others v. Turkey, 16 September 1996, § 69, Reports
of Judgments and Decisions 1996-IV).
106. With these elements in mind, the Court considers that the question
whether an applicant has victim status falls to be determined at the time of
the Court’s examination of the case where such an approach is justified in
the circumstances. In this respect, it refers to its case-law on loss of victim
status where it has examined objections raised by respondent Governments
that steps taken by or in the respondent State subsequent to the lodging of
the application with the Court afforded adequate redress for the alleged
violation such that the applicant could no longer be considered a victim for
the purposes of Article 34 of the Convention (see, for example, Amuur
v. France, 25 June 1996, § 36, Reports 1996-III; Chevrol v. France,
no. 49636/99, §§ 37-43, ECHR 2003-III; Siliadin v. France, no. 73316/01,
§§ 54 and 63, ECHR 2005-VII; and Ramazanova and Others v. Azerbaijan,
no. 44363/02, §§ 36-39, 1 February 2007). In a number of cases,
applications have been ruled inadmissible or struck out of the list where
such subsequent steps have provided adequate redress to the applicant, who
has accordingly lost his victim status (see, for example, Conrad v. Germany,
no. 13020/87, Commission decision of 13 April 1988, DR 56; Caraher
v. the United Kingdom (dec.), no. 24520/94, ECHR 2000-I; and Ohlen
v. Denmark (striking out), no. 63214/00, §§ 28-31, 24 February 2005). The
Court will therefore examine whether the applicant has victim status for the
purposes of Article 34 of the Convention, having regard to all the
circumstances of the case.
107. In the present case, the Court notes that the impugned Law entered
into force in May 2008 (see paragraph 44 above). The present application
therefore concerns enacted legislation.
108. As to whether the measure has been applied to the applicant to his
detriment, the Court observes that, following his election in April 2009, the
applicant was obliged to initiate a procedure to renounce his Romanian
nationality in order to have his mandate as an MP confirmed by the
Constitutional Court to allow him to take his seat. He has initiated this
procedure (see paragraphs 60-61 above). Again, following his election in
July 2009, the applicant was required to provide evidence of his initiation of
the renunciation procedure to the Constitutional Court in order to have his
mandate confirmed (see paragraph 66 above). The Court accordingly
concludes that the applicant was directly affected by Law no. 273 as he was
TĂNASE v. MOLDOVA JUDGMENT 25
obliged to initiate a procedure which put him at risk of losing his Romanian
nationality. Further and in any event, even before his election the
knowledge that, if elected, he would be required to take steps to renounce
his Romanian nationality if he wished to take his seat in Parliament
undoubtedly affected him throughout his electoral campaign. He may,
moreover, have lost votes since the electorate was aware that there was a
chance that he would decide not to take his seat if that would mean losing
his status as a dual national. Since the applicant was directly affected by the
Law in question, the Court concludes that the measure has had a detrimental
impact on him.
109. As to the Government’s argument that Law no. 273 required a
renunciation procedure merely to be initiated, and not to be completed, the
Court does not consider that this removes the applicant’s status as a victim.
Although the applicant’s mandate has now been confirmed by the
Constitutional Court, he was required to send a letter to the Romanian
authorities requesting the initiation of a procedure to renounce his
Romanian nationality, which he did. It is true that the Romanian
Government have not yet taken steps to strip the applicant of his Romanian
nationality. However, the conduct of the Romanian authorities is not within
the applicant’s control and they have made no formal undertaking not to act
upon the applicant’s request to renounce his Romanian nationality.
Accordingly, they may choose at any time to complete the renunciation
procedure.
110. In any event, each time the applicant wishes to stand for election to
Parliament he will face the uncertainty of not knowing whether the
Constitutional Court will accept that he has complied with the law and
whether the Romanian Government will take steps to give effect to his
request to renounce his Romanian nationality.
111. The Government’s objection as to lack of victim status is therefore
dismissed.
B. Non-exhaustion of domestic remedies
1. The Chamber’s conclusions
112. The Chamber rejected the Government’s objection that the
applicant had failed to exhaust domestic remedies in that he had not
complained to the Ombudsman, who could in turn have lodged a challenge
to Law no. 273 before the Constitutional Court. The Chamber emphasised
that the requirement to exhaust domestic remedies applied only to those
remedies which were accessible and effective. In the present case, the
remedy relied upon by the Government could not be considered effective as
it was not open to the applicant to complain directly to the Constitutional
Court.
26 TĂNASE v. MOLDOVA JUDGMENT
2. The parties’ submissions
(a) The Moldovan Government
113. The Government argued that the applicant could have requested
Mr Filat, who was an MP and therefore had standing to lodge a request with
the Constitutional Court (see paragraph 82 above), to challenge Law no. 273
before the Constitutional Court. Referring to the Chamber’s conclusion that
a request to the Constitutional Court via the Ombudsman was not an
effective remedy, the Government distinguished the present proposal on the
ground that Mr Filat was the President of the political party of which the
applicant was Vice-President; Mr Filat also held dual nationality; and
Mr Filat had already assisted the applicant in the present case. Accordingly,
they argued, the remedy proposed was accessible to the applicant.
114. The Government emphasised that the present case concerned a
matter of constitutionality which could only be remedied by the
Constitutional Court. In their submissions on admissibility before the
Chamber, the Government had raised the possibility of lodging a case with
the Constitutional Court via the Ombudsman. They argued that the
substance of the remedy advanced was the possibility of the Constitutional
Court considering the case and that the precise intermediary by which the
applicant sought its introduction was irrelevant. Accordingly, the
Government argued, the current objection was not a new plea but a
reiteration of the previous objection and they were therefore not barred from
raising the objection at this stage of the proceedings.
115. Finally, the Government pointed out that a request to the
Constitutional Court in December 2008 to consider the constitutionality of
Law no. 273 was successful as the request was admitted for examination
(see paragraphs 54-58 above). Thus, this was clearly an effective remedy,
although in the event the court found the Law to be constitutional.
(b) The applicant
116. The applicant argued that the objection raised by the Government
was a new objection. It did not depend on facts which were not available
when the Court considered the admissibility of the case. Accordingly,
relying on Sejdovic v. Italy ([GC], no. 56581/00, § 41, ECHR 2006-II), the
applicant contended that the Government should have raised the possibility
of this remedy in their written and oral pleadings on admissibility. He did
not consider that there were any exceptional circumstances in favour of
relieving the Government of the obligation to comply with this requirement
and accordingly he invited the Court to reject the Government’s objection.
117. In the event that the Court were minded to allow the objection to be
raised at this stage in the proceedings, the applicant argued that a complaint
to the Constitutional Court via Mr Filat was not an effective remedy open to
TĂNASE v. MOLDOVA JUDGMENT 27
the applicant within the meaning of Article 35 of the Convention. He
pointed to the fact that it was inaccessible as it was not open to any citizen
to lodge a complaint and he was not a member of any of the categories of
persons entitled to lodge a complaint until 22 April 2009, when his mandate
as an MP was confirmed. In any event, the applicant had appeared as Mr
Filat’s representative in the proceedings brought before the Constitutional
Court and raised all the issues which had come before this Court. The court
ruled that the Law was constitutional (see paragraph 55 above). To the
extent that the remedy could be considered effective, it had clearly been
exhausted.
(c) The Romanian Government
118. The Romanian Government highlighted that the remedy proposed
by the respondent Government had been raised for the first time in their
submissions to the Grand Chamber. They argued that it was clear from the
Court’s case-law that such objections should be made in submissions on
admissibility. The Romanian Government further noted that the respondent
Government had at their disposal all the facts necessary to have raised this
objection at the admissibility stage and had provided no explanation for
their failure to do so. Accordingly, there were no exceptional circumstances
justifying the delay in advancing this objection and the respondent
Government were therefore estopped from objecting at this stage of the
proceedings.
119. In the event that the Court allowed this objection to be considered
notwithstanding the delay, the Romanian Government contended that the
remedy proposed did not satisfy the requirements of Article 35 of the
Convention. It was not accessible to the applicant because he had no right
directly to address a challenge to the Constitutional Court but had to make a
request through an intermediary, who could choose whether to apply to the
court to have the contested legislation examined.
3. The Court’s assessment
120. The Court reiterates that the purpose of Article 35 § 1 of the
Convention is to afford the Contracting States the opportunity of preventing
or putting right the violations alleged against them before those allegations
are submitted to the Court. Consequently, States are dispensed from
answering for their acts before an international body before they have had
the opportunity to put matters right through their own legal systems (see, for
example, Remli v. France, 23 April 1996, § 33, Reports 1996-II, and
Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V). Under
Article 35 § 1 of the Convention, normal recourse should be had by an
applicant to remedies which are available and sufficient to afford redress in
respect of the breaches alleged. The existence of the remedies in question
must be sufficiently certain not only in theory but also in practice, failing
28 TĂNASE v. MOLDOVA JUDGMENT
which they will lack the requisite accessibility and effectiveness (see,
among other authorities, Akdivar and Others, cited above, § 66).
121. The Court further reiterates that under Rule 55 of the Rules of
Court, any plea of inadmissibility must be raised by the respondent
Contracting Party in its written or oral observations on the admissibility of
the application (see K. and T. v. Finland [GC], no. 25702/94, § 145, ECHR
2001-VII, and N.C. v. Italy [GC], no. 24952/94, § 44, ECHR 2002-X).
However, there may in particular cases be exceptional circumstances that
dispense the Government from the obligation to raise their preliminary
objection at the admissibility stage (see Prokopovich v. Russia,
no. 58255/00, § 29, 18 November 2004, and Sejdovic, cited above, § 41).
122. The Court considers it unnecessary to examine whether the
Government were estopped from raising this objection at this stage in the
proceedings as, in any case, the Court finds the remedy now proposed to be
one which the applicant was not required to exhaust. The Court notes the
finding of the Chamber, which is not contested by the respondent
Government, that the possibility of lodging a complaint with the
Ombudsman, who in turn could challenge the Law before the Constitutional
Court, was not an effective remedy because it was not open to the applicant
to complain directly to the court. The Court sees no reason to disagree with
the Chamber’s assessment. The remedy currently proposed by the
Government is, similarly, not directly accessible to the applicant as he was
unable to approach the Constitutional Court directly but had to rely on the
exercise of discretion by Mr Filat to lodge a complaint. Accordingly, this
remedy was not effective for the purposes of Article 35 § 1 of the
Convention.
123. In any event, it is clear that, the Constitutional Court having
pronounced on the constitutionality of Law no. 273 (see paragraphs 54-58
above), the remedy proposed has now been exhausted. In the circumstances,
the Government’s objection is dismissed.
C. Incompatibility ratione materiae
1. The parties’ submissions
(a) The Moldovan Government
124. In their submissions to the Grand Chamber, the Government raised
for the first time an objection ratione materiae following references to the
European Convention on Nationality (“the ECN”) in the Chamber’s
judgment. In their view, the Chamber did not consider the right to stand for
elections, protected by Article 3 of Protocol No. 1, but instead examined the
right to multiple nationalities and the right to acquire a nationality, which
TĂNASE v. MOLDOVA JUDGMENT 29
were not rights guaranteed by the Convention. The Government challenged
the significance accorded by the Chamber to ratification and non-ratification
of the ECN. They pointed out that Moldova could simply denounce the
ECN and, if it wished, re-ratify it subject to a reservation in respect of
Article 17.
125. The Government requested the Court to consider this objection as
an objection relevant to the substantive questions raised by the case and to
deal with it in its examination of the merits.
126. Relying on Blečić v. Croatia ([GC], no. 59532/00, §§ 63-69, ECHR
2006-III), they contended that they were not estopped from raising the
objection at this stage in the procedure as it went to the question of the
Court’s jurisdiction.
(b) The applicant
127. The applicant argued that, in principle, this objection should also
have been raised before the application was declared admissible and that,
accordingly, the Government were estopped from raising it at this stage.
However, he accepted that the Court had to satisfy itself that it had
jurisdiction in any case brought before it and that it was required to examine
the question of jurisdiction at every stage of the procedure.
128. The applicant concluded that the complaint raised by the
Government should not be considered a preliminary objection because it
related to the interpretation of rights under Article 3 of Protocol No. 1. He
invited the Court to consider the arguments raised by the Government in its
examination of the substance of the complaint.
(c) The Romanian Government
129. The Romanian Government referred to their arguments as to
estoppel in relation to the objection of the respondent Government regarding
exhaustion of domestic remedies and contended that similar arguments
applied to the objection of incompatibility ratione materiae. Unlike in
Demir and Baykara v. Turkey ([GC], no. 34503/97, ECHR 2008), the
respondent Government had clearly indicated that their objection was a
reaction to the judgment of the Chamber and that the argument had not
previously been raised in substance. Although in Blečić (cited above), the
Court gave examples of incompatibility objections which could be raised at
any stage of the procedure, none of the examples was similar to the present
case. Accordingly, in the view of the Romanian Government, the
respondent Government was not able to raise the objection at this stage.
130. However, if the Court were to conclude that there was no estoppel,
the Romanian Government invited the Court to join the objection to the
merits and to consider it in that context. They argued that it was necessary
to analyse the undertakings of Moldova in the context of international
agreements in order to assess how Moldova had chosen to give effect to
30 TĂNASE v. MOLDOVA JUDGMENT
rights guaranteed in the Convention. They referred to the Court’s consistent
case-law to the effect that the Convention could not be interpreted in a
vacuum and that regard should be had to other relevant instruments of
international law (for example, Emonet and Others v. Switzerland,
no. 39051/03, § 65, 13 December 2007, and Al-Adsani v. the United
Kingdom [GC], no. 35763/97, § 55, ECHR 2001-XI). Thus, in the view of
the Romanian Government, the Chamber was correct to refer to
engagements assumed by Moldova at European level as relevant to its
analysis of the restrictions imposed by Law no. 273. In this regard, the
Romanian Government noted that Moldova had ratified the ECN without
lodging reservations and that the obligation on States to execute in good
faith international treaties to which they were party was a fundamental
principle of international law.
2. The Court’s assessment
131. The Court observes that the Government’s objection ratione
materiae was not previously raised at the admissibility stage and is therefore
a new objection. However, it notes that an objection of incompatibility
ratione materiae is an objection which goes to the Court’s jurisdiction and
points out that the Court is obliged to examine whether it has jurisdiction at
every stage of the proceedings. As a result, the Government cannot be
considered as being estopped from raising such an objection at this stage
(see, mutatis mutandis, Blečić, cited above, § 67).
132. Like the parties, the Court considers that the objection is closely
linked to the merits of the applicant’s complaint. It will therefore deal with
the objection in its examination of the merits below.
D. Conclusion
133. The application cannot be rejected as incompatible ratione
materiae with the provisions of the Convention for failure to exhaust
domestic remedies or for lack of victim status. The Court therefore
dismisses the respondent Government’s preliminary objections, with the
exception of its objection of incompatibility ratione materiae, which is
joined to the merits.
II. ALLEGED VIOLATION OF ARTICLE 3 OF PROTOCOL No. 1
A. The Chamber’s conclusions
134. The Chamber accepted that the impugned provisions were
formulated in clear terms and that they pursued the legitimate aim of
TĂNASE v. MOLDOVA JUDGMENT 31
ensuring the loyalty of MPs to the Moldovan State. However, it considered
that the means employed by the Government for the purpose of ensuring the
loyalty of its MPs to the State were disproportionate. There was therefore a
violation of Article 3 of Protocol No. 1.
135. In its assessment of the proportionality of the measure, the
Chamber took into consideration the practice of other member States of the
Council of Europe and other methods available to the Government to ensure
the loyalty of MPs, such as requiring them to swear an oath. It also
considered the provisions of the ECN and the comments of the European
Commission against Racism and Intolerance (ECRI) and the Commission
for Democracy through Law of the Council of Europe (the Venice
Commission) on the new Law. Even in the specific context of Moldova’s
political evolution, the Chamber was not satisfied that the prohibition on
multiple nationals sitting as MPs could be justified, particularly in view of
the fact that such a far-reaching restriction had been introduced
approximately a year or less before the general elections.
B. The parties’ submissions
1. The Moldovan Government
136. The Government explained by way of preliminary remarks that all
that was required under Law no. 273 was that an individual prove that he
had initiated a procedure to renounce the citizenship of any other State (see
paragraph 79 above). Further, as noted above (see paragraph 98), once the
Constitutional Court had confirmed the mandate of an MP, there was no
mechanism whereby the mandate could subsequently be revoked: the Law
made no provision for such a procedure.
137. The Government reiterated its submissions before the Chamber that
the interference was lawful and that it pursued the legitimate aims of
ensuring loyalty, defending the independence and existence of the State and
guaranteeing the security of the State. They pointed to the findings of the
Constitutional Court as to the consistency of Law no. 273 with the
Moldovan Constitution and international conventions (see paragraph 55
above). They contested the Chamber’s conclusion that the measure was not
proportionate, arguing that the Chamber had failed to give adequate weight
to their submissions on the special historical context of Moldova which in
their view necessitated restrictions on those with dual nationality becoming
MPs. They pointed out that when the ECN was ratified in 1999, the number
of Moldovans holding dual nationality was insignificant as it was not
permitted under the law in force at the time (see paragraph 22 above).
Accordingly, no reservation in respect of Article 17 was thought necessary.
They further explained that in 1999, Moldova was not a parliamentary
republic as it is today, but a semi-presidential republic. The legislature
32 TĂNASE v. MOLDOVA JUDGMENT
therefore played a greater role in the State today than it did then. Although
of the other Council of Europe member States which banned dual nationals
from sitting as MPs, Azerbaijan, Lithuania and Malta had not ratified the
ECN and Bulgaria had lodged a reservation to Article 17, Moldova could
simply denounce the ECN and, if it wished to do so, re-ratify it subject to a
reservation in respect of Article 17. This would place it in the same position
as Bulgaria.
138. The Government also criticised the Chamber for drawing
significance from the fact that Moldova had failed to submit the draft law
for consideration by relevant international authorities and had failed to abide
by the recommendations of ECRI and the Venice Commission (see
paragraphs 40, 45 and 51 above). Referring to Boicenco v. Moldova
(no. 41088/05, 11 July 2006), the Government pointed out that the Court
had in the past found a violation even where the Law in question had been
submitted to Council of Europe experts and had been amended to comply
with their recommendations. Conversely, in Yumak and Sadak v. Turkey
([GC], no. 10226/03, ECHR 2008), Turkey’s failure to comply with
recommendations of Council of Europe experts did not lead the Court to
find a violation of the Convention. The Government also contested the
relevance of the report of the Venice Commission, given that it had not been
published by the date on which Law no. 273 was adopted.
139. As to the other methods of ensuring loyalty proposed by the
Chamber, the Government argued that an oath would be insufficient as any
dual national Moldovan would also have sworn an oath to their other State
of nationality. Accordingly, an oath was merely declaratory and was
ineffective at ensuring loyalty.
140. Finally, the Government noted that 21 out of 101 MPs elected in
the April 2009 elections were dual nationals. They argued that this gave rise
to serious concerns as far as Moldovan independence, security and
statehood were concerned.
141. The Government invited the Court to find that there was no
violation of Article 3 of Protocol No. 1 in the present case.
2. The applicant
142. The applicant maintained that the restrictions in Law no. 273
violated his right to stand as a candidate in free elections which ensured the
free expression of the people in the choice of the legislature. He argued that
the requirement that he initiate a procedure renouncing his Romanian
nationality in order to be able to take his seat in Parliament curtailed the
rights guaranteed by Article 3 of Protocol No. 1 to such an extent as to
impair their very essence and deprive them of their effectiveness, as the
right to stand for election would be rendered meaningless without the right
to sit as an MP once elected (referring to M. v. the United Kingdom,
no. 10316/83, Commission decision of 7 March 1984, DR 37, p. 129).
TĂNASE v. MOLDOVA JUDGMENT 33
143. The applicant reiterated his complaint that Law no. 273 did not
satisfy the requirement of lawfulness because it was inconsistent with the
provisions of the Constitution and the ECN, which was ratified by Moldova
in 1999 and was therefore part of the internal legal order (see
paragraphs 71-73 above).
144. The applicant further alleged that Law no. 273 did not pursue a
legitimate aim because the aim of ensuring loyalty towards Moldova was
not the genuine motivation behind the enactment of the new Law. By way
of example, Mrs Larisa Savga had been reappointed a member of
government following the April 2009 elections, even though it was well
known that she also held Romanian nationality. He also referred to
unconfirmed press reports that the former President of Moldova,
Mr Voronin, had held Russian citizenship while serving as President and
received a pension from Russia. Relying upon conclusions of independent
analysts, the applicant argued that holding dual nationality did not make
Moldovan citizens less patriotic.
145. Finally, the applicant alleged that the Law was disproportionate,
arbitrary and anti-democratic. He argued that the Convention had to be
interpreted in a manner which rendered the rights contained therein practical
and effective. To this end, it had to be read as a whole and in such a way as
to promote internal consistency between its various provisions. Relevant
rules and principles of international law had to be taken into account. Any
emerging consensus among European States was a relevant factor for
consideration by the Court (see Demir and Baykara, cited above, §§ 66-85).
Applying these principles, the applicant concluded that the Court should not
ignore the obligations assumed by the Government under the ECN when
assessing the proportionality of the restrictions under Article 3 of Protocol
No. 1. The same applied to the recommendations and findings of other
international organisations. The applicant also pointed to the fact that
Moldova was the only Council of Europe member State which allowed
multiple nationalities but banned those who were multiple nationals from
standing for national elections. He argued that this demonstrated an absence
of international acceptance for the approach of the Government.
146. The applicant further contended that it was disproportionate of the
Government to restrict the right to sit as an MP to individuals with only
Moldovan nationality in the light of their previous policy of encouraging
Moldovan nationals to acquire other nationalities. The Government had
admitted that a significant number of Moldovans had acquired a second
nationality for social and economic reasons (see paragraph 39 above), a fact
which, in the applicant’s view, rendered their new policy even more
disproportionate. He emphasised that the Government had provided no
example of any threat to the security or independence of Moldova from dual
nationals. In the applicant’s view, the existence of sanctions for treason was
an adequate means of preventing disloyalty. In any case, access to classified
34 TĂNASE v. MOLDOVA JUDGMENT
information was dependent upon security clearance which was only granted
following a thorough investigation by the secret services.
147. Finally, the applicant criticised the adoption of the new legislation
less than one year before the 5 April 2009 elections. He argued that the
proportionality of the Law should be assessed in the general context of
electoral reform in Moldova, including the raising of the threshold for
gaining seats in Parliament from 4% to 6% and the prohibition of electoral
blocs (see paragraph 37 above). The election results of 5 April 2009
demonstrated that the new Law mainly affected the opposition, as 21 of its
41 members were concerned (see paragraph 59 above). The example of
Mrs Savga (see paragraph 144 above) was evidence of the arbitrary
application of the new Law. In the applicant’s submission, it was relevant
for the Court whether the effect of rules governing elections excluded a
group of persons from participating in the political life of a country, whether
discrepancies created by a particular electoral system could be considered
arbitrary or abusive and whether the system tended to favour one political
party over another (referring to, inter alia, Aziz v. Cyprus, no. 69949/01, §
28, ECHR 2004-V, and Yumak and Sadak, cited above, § 121). The
applicant contended that the real aim behind the electoral reform was to
diminish the electoral prospects of the opposition party and that Law no.
273 was therefore arbitrary and abusive.
3. The Romanian Government
148. The Romanian Government contested the legality of Law no. 273.
They argued that the Law was not foreseeable given the fact that it was not
uniformly applied and that different interpretations could be given to its
provisions.
149. They further argued that a minimum European standard emerged
from an examination of the legislation applicable in the different member
States and that this standard did not impose a condition of single citizenship
for election to Parliament. Unlike the other Council of Europe member
States which banned dual nationals from sitting as MPs, Moldova had
chosen to assume all of the obligations arising under the ECN. The fact that
Moldova had chosen to change its position on the possibility of acquiring
dual nationality did not absolve it from complying with its obligations under
the ECN. The Romanian Government emphasised that Article 4 of the
Moldovan Constitution provided that in the event of a disagreement
between international human rights conventions to which Moldova was a
party and domestic legislation, the international measures prevailed (see
paragraph 71 above). Furthermore, section 25 of the Law on citizenship of
the Republic of Moldova provided that citizens of Moldova who also held
citizenship of another State had the same rights and obligations as other
Moldovan citizens (see paragraph 75 above).
TĂNASE v. MOLDOVA JUDGMENT 35
150. The Romanian Government also pointed out that, some seventeen
years after Moldova gained its independence, the respondent Government
asserted a risk to that independence without providing any proof. They
emphasised that no causal link had been established between dual
nationality and the alleged danger to the independence of the State and that
no example had been proffered of a case where a dual national had
committed acts which undermined independence or national security.
151. The Romanian Government also argued that the legislation did not
pursue a legitimate aim. They did not contest that the protection of the
independence and national security of the State could be a legitimate aim
which had to be assessed in the context of the historical and political
background of the State in question. However, they disputed the submission
by the respondent Government that the historico-political situation in
Moldova rendered the aim legitimate in the present case. They further
emphasised that a number of Laws passed between 1991 and 2000 did not
impose a condition of single citizenship for candidacy for certain public
posts. One example was Law no. 720 of 18 September 1991, regulating
presidential elections. The Romanian Government, relying on Ždanoka
v. Latvia ([GC], no. 58278/00, § 135, ECHR 2006-IV) and Ādamsons
v. Latvia (no. 3669/03, § 123, 24 June 2008), argued that even if a condition
of single citizenship could have been justified in the early years following
Moldovan independence, with the passage of time and the consolidation of
democracy, such a condition could no longer be justified. It was therefore
difficult to understand the position of Moldova, which for three parliaments
had allowed multiple citizens to become MPs but which now, some
seventeen years later, considered the possession of another citizenship to
constitute a grave danger to Moldova and assimilated dual nationality with
treason. They argued that the aim of ensuring loyalty to the State should be
realised through the imposition of sanctions for conduct which harms the
national interest and not through restricting access of multiple nationals to
certain public functions.
152. As regards proportionality, the Romanian Government again
emphasised the existence of a minimum European standard which did not
impose a condition of single citizenship for election to Parliament. Further,
the reports published by ECRI and the Venice Commission (see
paragraphs 45 and 51 above), which, as demonstrated by Shtukaturov
v. Russia (no. 44009/05, § 95, ECHR 2008), were a relevant factor of the
Court’s consideration, supported the assertion that there was a common
European standard in electoral matters. Such reports were important both
because of the intrinsic value of the opinion expressed – which was the
opinion of impartial legal experts – and precisely because of the weight
attributed to them by the Court and the other organs of the Council of
Europe.
36 TĂNASE v. MOLDOVA JUDGMENT
153. The Romanian Government concluded that Moldova had exceeded
its margin of appreciation in this area. In this regard, it was not enough that
the applicant was permitted to stand as a candidate. In order for the right to
be effective, he had to be able to take his seat (referring to M. v. the United
Kingdom, cited above). The adoption of Law no. 273 impaired the very
essence of the rights guaranteed by Article 3 of Protocol No. 1, rendering
them theoretical and illusory. In conclusion, the Romanian Government
invited the Court to endorse the Chamber’s conclusion that there had been a
violation of that Article.
C. The Court’s assessment
1. General principles
154. The Court has consistently emphasised the importance of Article 3
of Protocol No. 1 in an effective democracy and, as a consequence, its prime
importance in the Convention system. In Yumak and Sadak (cited above,
§ 105), it reiterated that the rights guaranteed under Article 3 of Protocol
No. 1 are crucial to establishing and maintaining the foundations of an
effective and meaningful democracy governed by the rule of law. In
Mathieu-Mohin and Clerfayt v. Belgium (2 March 1987, § 47, Series A
no. 113), and Lingens v. Austria (8 July 1986, §§ 41 and 42, Series A
no. 103), the Court held that free elections and freedom of expression, and
particularly freedom of political debate, formed the foundation of any
democracy.
155. The Court’s case-law has distinguished between the active aspect
of Article 3 of Protocol No. 1, which relates to the right to vote, and the
passive aspect, namely the right to stand as a candidate for election (see
Ždanoka, cited above, §§ 105 and 106). The present case is principally
concerned with the latter aspect. However, as noted above (see
paragraph 108), the prohibition on multiple nationals sitting as MPs may
also have had a secondary impact on the manner in which the electorate
exercised its right to vote in Moldova.
156. As regards the passive aspect of Article 3 of Protocol No. 1, the
Court has emphasised the considerable latitude which States enjoy in
establishing criteria on eligibility to stand for election. In Ždanoka (cited
above, § 106), the Court explained:
“... although [the criteria] have a common origin in the need to ensure both the
independence of elected representatives and the freedom of choice of electors, these
criteria vary in accordance with the historical and political factors specific to each
State. The multiplicity of situations provided for in the constitutions and electoral
legislation of numerous member States of the Council of Europe shows the diversity
of possible approaches in this area. Therefore, for the purposes of applying Article 3,
TĂNASE v. MOLDOVA JUDGMENT 37
any electoral legislation must be assessed in the light of the political evolution of the
country concerned ...”
157. Similarly, in Podkolzina v. Latvia (no. 46726/99, § 33, ECHR
2002-II), the Court observed that for the purposes of applying Article 3, any
electoral legislation must be assessed in the light of the political evolution
of the country concerned, so that features that would be unacceptable in the
context of one system may be justified in the context of another. However,
it emphasised that the State’s margin of appreciation in this regard was
limited by the obligation to respect the fundamental principle of Article 3 of
Protocol No. 1, namely “the free expression of the opinion of the people in
the choice of the legislature” (see also Mathieu-Mohin and Clerfayt, cited
above, § 47, and Melnychenko v. Ukraine, no. 17707/02, § 55, ECHR
2004-X).
158. In assessing the limitations of the latitude afforded to States, the
Court in Aziz (cited above, § 28) noted:
“Although ... States enjoy considerable latitude to establish rules within their
constitutional order governing parliamentary elections and the composition of the
parliament, and ... the relevant criteria may vary according to the historical and
political factors peculiar to each State, these rules should not be such as to exclude
some persons or groups of persons from participating in the political life of the
country and, in particular, in the choice of the legislature, a right guaranteed by both
the Convention and the Constitutions of all Contracting States.”
159. Applying these principles, the Court considered in Ždanoka (cited
above, §§ 119-35), that historical considerations could provide justification
for restrictions on rights intended to protect the integrity of the democratic
process by, in that case, excluding individuals who had actively participated
in attempts to overthrow the newly established democratic regime.
However, the Court suggested that such restrictions were unlikely to be
compatible if they were still applied many years later, at a point where the
justification for their application and the threats they sought to avoid were
no longer relevant. Subsequently, in Ādamsons (cited above, §§ 123-28), the
Court emphasised that with the passage of time, general restrictions on
electoral rights become more difficult to justify. Instead, measures had to be
“individualised” in order to address a real risk posed by an identified
individual.
160. In Hirst v. the United Kingdom (no. 2) ([GC], no. 74025/01, § 62,
ECHR 2005-IX), the Court observed more generally that any conditions
imposed on the rights guaranteed under Article 3 of Protocol No. 1 must
reflect, or not run counter to, the concern to maintain the integrity and
effectiveness of an electoral procedure aimed at identifying the will of the
people through universal suffrage.
161. Finally, notwithstanding the wide margin of appreciation afforded
to States in this area, the Court has reiterated on numerous occasions that it
is for the Court to determine in the last resort whether the requirements of
38 TĂNASE v. MOLDOVA JUDGMENT
Article 3 of Protocol No. 1 have been complied with. In this regard, it has to
satisfy itself that the conditions do not curtail the rights in question to such
an extent as to impair their very essence and deprive them of their
effectiveness; that they are imposed in pursuit of a legitimate aim; and that
the means employed are not disproportionate (see, for example, Hirst
(no. 2), cited above, § 62, and Yumak and Sadak, cited above, § 109).
2. Application of the general principles to the present case
162. The Court notes that it has found that the applicant can claim to be
a victim of Law no. 273 (see paragraph 111 above). It further observes that
in both the April 2009 and the July 2009 elections, the applicant was elected
as an MP (see paragraphs 60 and 66 above). In order to have his mandate
confirmed by the Constitutional Court, he was required to initiate a
procedure to renounce his Romanian nationality (see paragraphs 60-61 and
66 above). Accordingly, the Court considers that there has been an
interference with the applicant’s rights under Article 3 of Protocol No. 1.
Such interference will constitute a violation unless it meets the requirements
of lawfulness, it pursues a legitimate aim and it is proportionate.
(a) Lawfulness
163. The Court observes that the prohibition on multiple nationals sitting
as MPs contained in Law no. 273 was couched in sufficiently clear terms.
Once adopted, the Law was published in the Official Gazette. Accordingly,
the Court is satisfied that the impugned legislation met the requirements of
foreseeability. Although there would appear to be an inconsistency between
the Law and Article 17 of the ECN, which is part of the domestic legal order
under the Moldovan Constitution and takes precedence over national
legislation (see paragraphs 71-73 above), the Court does not find it
necessary to resolve the apparent conflict of norms. However, it will
consider the impact of the ECN more closely in its examination of the
proportionality of the measure below.
(b) Legitimate aim
164. Unlike Articles 8, 9, 10 and 11 of the Convention, Article 3 of
Protocol No. 1 does not itself set out a list of aims which can be considered
legitimate for the purposes of that Article. Several aims are relied upon by
the Government to justify the prohibition introduced by Law no. 273,
namely ensuring loyalty, defending the independence and existence of the
State and guaranteeing the security of the State. The Court observes that the
Constitutional Court found the aim pursued by the prohibition to be
securing the loyalty of MPs to the State and concluded that allowing MPs to
hold dual nationality was contrary to the constitutional principle of the
independence of the mandate of MPs, State sovereignty, national security
TĂNASE v. MOLDOVA JUDGMENT 39
and the non-disclosure of confidential information (see paragraph 56
above). The Deputy Minister of Justice, explaining the aim of the proposed
legislation, said that there may be a conflict of interest in cases where
Moldovan citizens had political and legal obligations towards other States
by virtue of holding a second nationality (see paragraph 39 above).
165. As regards the aim of ensuring loyalty, a concept invoked by all
parties in their submissions before the Court (see paragraphs 137, 144
and 151 above), the Court observes that “loyalty”, as invoked by the parties
to justify the introduction of the prohibition, is not clearly defined and no
explanation of its content has been provided by the parties. However, the
parties appear to agree that loyalty in this context is linked to the existence
and independence of the State and to matters of national security. The oath
of allegiance sworn by Moldovan citizens who acquire Moldovan
nationality by naturalisation or reacquisition further refers to the need to
respect the Constitution and the laws of the State and to refrain from action
which would prejudice the interests and territorial integrity of the State (see
paragraph 76 above).
166. For its part, the Court would distinguish at the outset between
loyalty to the State and loyalty to the government. While the need to ensure
loyalty to the State may well constitute a legitimate aim which justifies
restrictions on electoral rights, the latter cannot. In a democratic State
committed to the rule of law and respect for fundamental rights and
freedoms, it is clear that the very role of MPs, and in particular those
members from opposition parties, is to represent the electorate by ensuring
the accountability of the government in power and assessing their policies.
Further, the pursuit of different, and at times diametrically opposite, goals is
not only acceptable but necessary in order to promote pluralism and to give
voters choices which reflect their political opinions. As the Court has
previously noted, protection of opinions and the freedom to express them is
one of the objectives of the freedoms guaranteed by the Convention, and in
particular Articles 10 and 11. This principle is all the more important in
relation to MPs in view of their essential role in ensuring pluralism and the
proper functioning of democracy (see, regarding the importance of freedom
of expression for political parties in general, Refah Partisi (the Welfare
Party) and Others v. Turkey [GC], nos. 41340/98, 41342/98, 41343/98 and
41344/98, § 88, ECHR 2003-II).
167. As to what loyalty is required from MPs to the State, the Court
considers that such loyalty in principle encompasses respect for the
country’s Constitution, laws, institutions, independence and territorial
integrity. However, the notion of respect in this context must be limited to
requiring that any desire to bring about changes to any of these aspects must
be pursued in accordance with the laws of the State. Any other view would
undermine the ability of MPs to represent the views of their constituents, in
particular minority groups. The Court has previously emphasised that there
40 TĂNASE v. MOLDOVA JUDGMENT
can be no justification for hindering a political group solely because it seeks
to debate in public the situation of part of the State’s population and to take
part in the nation’s political life in order to find, according to democratic
rules, solutions capable of satisfying everyone concerned. Similarly, in the
present case, the fact that Moldovan MPs with dual nationality may wish to
pursue a political programme which is considered by some to be
incompatible with the current principles and structures of the Moldovan
State does not make it incompatible with the rules of democracy. A
fundamental aspect of democracy is that it must allow diverse political
programmes to be proposed and debated, even where they call into question
the way a State is currently organised, provided that they do not harm
democracy itself (see Socialist Party and Others v. Turkey, 25 May 1998,
§§ 45 and 47, Reports 1998-III, and Manole and Others v. Moldova,
no. 13936/02, § 95, ECHR 2009).
168. With this in mind, the Court turns to consider whether the measure
in the present case was genuinely intended to secure loyalty to the State as
alleged by the Government. In this regard, the Court observes that Law
no. 273 was the third aspect of an electoral reform package, whose other
measures consisted of raising the electoral threshold and banning electoral
blocs (see paragraph 37 above). All the measures proposed had a
detrimental impact on the opposition, which had previously found it
difficult to secure enough votes to meet the threshold to enter Parliament
and had succeeded in doing so only through the formation of electoral blocs
(see paragraphs 31 and 33 above). The results of the April 2009 elections, in
which of the 101 MPs elected, 21 were negatively affected by Law no. 273
and all 21 were opposition MPs (see paragraph 59 above), demonstrate the
disproportionate effect of the new Law. The applicant’s allegation that the
Law exempts from its scope the residents of Transdniestria, a large number
of whom hold Russian nationality, raises further concerns about the true aim
of the legislation (however, see further paragraph 187 below concerning the
ambiguity surrounding this exemption). Finally, the Court considers it
significant that the amendments were introduced less than a year before the
general elections (see paragraph 44 above). Following the April 2009
elections, a further amendment was introduced to the electoral legislation,
which was again criticised by opposition parties as being intended to
improve the prospects of the governing party and its political allies (see
paragraph 63 above). In this regard, the Court refers to the Venice
Commission Code of Practice in Electoral Matters, which warns of the risk
that frequent changes to electoral legislation or changes introduced just
before elections will be perceived, rightly or wrongly, as an attempt to
manipulate electoral laws to the advantage of the party in power (see
paragraph 86 above). It is also significant that the Monitoring Committee
and the Parliamentary Assembly of the Council of Europe expressed
concern at the changes to the electoral legislation, which they considered
TĂNASE v. MOLDOVA JUDGMENT 41
restricted opportunities for political forces to participate effectively in the
political process and thus weakened pluralism (see paragraphs 47 and 49-50
above).
169. Where the authorities introduce significant restrictions on the right
to vote or stand for election, and in particular where such changes are
introduced shortly before elections take place, it is for the Government to
provide to the Court the relevant evidence to support their claim as to the
intended aim of the impugned measure. Further, in cases such as the
present, where the measure has a significant detrimental effect on the ability
of opposition parties to participate effectively in the political process, the
requirement that the Government produce evidence to demonstrate that the
amendments were introduced for legitimate reasons is all the more pressing.
In the present case, the Government have been unable to provide a single
example of an MP with dual nationality showing disloyalty to the State of
Moldova. Other than brief references in the judgment of the Constitutional
Court to movements to undermine the State of Moldova, very little
explanation at all has been provided for the change in electoral policy.
Further, there would appear to be evidence that the Law is not being
uniformly applied (see paragraph 144 above).
170. In the circumstances, the Court is not entirely satisfied that the aim
of the measure was to secure the loyalty of MPs to the State. It is not,
however, necessary for it to reach a conclusion on this question, in view of
its conclusions concerning the proportionality of the prohibition (see
below). Accordingly, the Court leaves open whether the prohibition on
multiple nationals taking seats in Parliament pursued a legitimate aim.
(c) Proportionality
171. In the first place, the Court observes that very few member States
of the Council of Europe prohibit dual nationals becoming MPs (see
paragraph 87 above). Of the three countries other than Moldova in which a
clear prohibition exists, two do not allow their nationals to hold dual
nationality. Further, none of these three States have signed up to Article 17
of the ECN (see paragraph 89 above). The States of the former Yugoslavia,
most of which have ethnically diverse populations, all allow dual nationality
in at least some circumstances, but none prohibits multiple nationals from
standing for Parliament (see paragraph 92 above).
172. The Court considers that a review of practice across Council of
Europe member States reveals a consensus that where multiple nationalities
are permitted, the holding of more than one nationality should not be a
ground for ineligibility to sit as an MP, even where the population is
ethnically diverse and the number of MPs with multiple nationalities may be
high. However, notwithstanding this consensus, a different approach may be
justified where special historical or political considerations exist which
render a more restrictive practice necessary.
42 TĂNASE v. MOLDOVA JUDGMENT
173. The Court emphasises the special position of Moldova, which has a
potentially high proportion of dual nationals and has only relatively recently
become independent. The Court considers that in the light of Moldova’s
history (see paragraphs 11-18 above), there was likely to be a special
interest in ensuring that, upon declaring independence in 1991, measures
were taken to limit any threats to the independence and security of the
Moldovan State in order to ensure stability and allow the establishment and
strengthening of fragile democratic institutions. The Court notes that, of the
other States in the region, a ban in Romania, which allows dual nationality,
on dual nationals sitting as MPs was lifted as recently as 2003. Bulgaria
currently adopts the same approach as Moldova (see paragraph 87 above).
Ukraine continues to prohibit dual nationality (see paragraph 90 above). The
restriction introduced by Law no. 273 must be assessed with due regard to
this special historico-political context and the resultant wide margin of
appreciation enjoyed by the State (see Ždanoka, cited above, § 121).
Accordingly, the Court does not exclude that in the immediate aftermath of
the Declaration of Independence by Moldova in 1991, a ban on multiple
nationals sitting as MPs could be justified.
174. However, the Court considers it significant that the ban was not put
in place in 1991 but in 2008, some seventeen years after Moldova had
gained independence and some five years after it had relaxed its laws to
allow dual citizenship. In the circumstances, the Court considers the
argument that the measure was necessary to protect Moldova’s laws,
institutions and national security to be far less persuasive. In order for the
recent introduction of general restrictions on electoral rights to be justified,
particularly compelling reasons must be advanced. However, the
Government have not provided an explanation of why concerns have
recently emerged regarding the loyalty of dual citizens and why such
concerns were not present when the law was first changed to allow dual
citizenship. The Government argued that the numbers involved – around
one-fifth of current MPs hold or are in the process of applying for a second
nationality – are sufficient to justify the approach taken (see paragraph 140
above). The Court acknowledges that the numbers are significant. However,
it also emphasises that a large proportion of citizens also hold dual
nationality (see paragraphs 26-28 above) and that these citizens have the
right to be represented by MPs who reflect their concerns and political
views.
175. The Court further refers to its judgment in Ādamsons (cited above,
§ 123), in which it noted that with the passage of time, general restrictions
on electoral rights become more difficult to justify. There, the Court
emphasised the need to “individualise” measures, to take account of the
actual conduct of individuals rather than a perceived threat posed by a group
of persons. In the present case, the Court considers that there are other
means of protecting Moldova’s laws, institutions and national security.
TĂNASE v. MOLDOVA JUDGMENT 43
Sanctions for illegal conduct or conduct which threatens national interests
are likely to have a preventative effect and enable any particular threat
posed by an identified individual to be addressed. The Government have not
suggested that security clearance for access to confidential documents is
inadequate to ensure protection of confidential and sensitive information. It
should be noted that both of these measures are concerned with identifying a
credible threat to State interest in particular circumstances based on specific
information, rather than operating on a blanket assumption that all dual
nationals pose a threat to national security and independence. The Court
reiterates that this is the approach preferred where an immediate threat to
democracy or independence has passed (ibid., § 125).
176. Further, and in any event, historico-political considerations should
be viewed in the broader context of the obligations which Moldova has
freely undertaken under the ECN and the recommendations and conclusions
of relevant international bodies. It is appropriate to consider in this context
the objection ratione materiae raised by the respondent Government (see
paragraphs 131-32 above). The Court emphasises that it has consistently
held that it must take into account relevant international instruments and
reports, and in particular those of other Council of Europe organs, in order
to interpret the guarantees of the Convention and to establish whether there
is a common European standard in the field. It is for the Court to decide
which international instruments and reports it considers relevant and how
much weight to attribute to them. Where there is a common standard which
the respondent State has failed to meet, this may constitute a relevant
consideration for the Court when it interprets the provisions of the
Convention in specific cases (see, inter alia, Demir and Baykara, cited
above, §§ 85-86, and Shtukaturov, cited above, § 95). In the present case,
the Court considers the provisions of the ECN, the conclusions and reports
of ECRI and the Venice Commission (see paragraphs 45 and 51 above) and
the resolutions of the Parliamentary Assembly of the Council of Europe (see
paragraphs 48-50 above) to be relevant to its assessment of whether Law
no. 273 is proportionate. In particular, in making reference to the ECN, the
Court is not seeking to examine the applicant’s right to hold dual nationality
but rather the right of the respondent State to introduce restrictions on his
right to take his seat following his election as a result of his dual nationality
and the compatibility of any such restriction with Article 3 of Protocol
No. 1.
177. As to the content of such reports and commentaries, the Court
observes that the Venice Commission, ECRI, the Parliamentary Assembly
of the Council of Europe and the Monitoring Committee were unanimous in
their criticism of the prohibition (see paragraphs 45-51 above). Concerns
were expressed as to the discriminatory impact of Law no. 273 as well as its
impact on the ability of a number of political forces to participate effectively
in the political process. The Court further takes note of Article 17 of the
44 TĂNASE v. MOLDOVA JUDGMENT
ECN and Moldova’s undertaking pursuant to that Article to ensure that
Moldovan nationals in possession of another nationality have the same
rights and duties as other Moldovan nationals (see paragraph 85 above).
178. Finally, the Court notes that any restriction on electoral rights
should not be such as to exclude some persons or groups of persons from
participating in the political life of the country (see paragraph 158 above).
In this respect, the Court emphasises the disproportionate effect of the Law
on the parties which were at the time of its introduction in opposition (see
paragraph 168 above). Pluralism and democracy must be based on dialogue
and a spirit of compromise, which necessarily entails various concessions
on the part of individuals or groups of individuals which are justified in
order to maintain and promote the ideals and values of a democratic society
(see United Communist Party of Turkey and Others v. Turkey, 30 January
1998, § 45, Reports 1998-I, and Leyla Şahin v. Turkey [GC], no. 44774/98,
§ 108, ECHR 2005-XI). In order to promote such dialogue and exchange of
views necessary for an effective democracy, it is important to ensure access
to the political arena for opposition parties on terms which allow them to
represent their electorate, draw attention to their preoccupations and defend
their interests (see Christian Democratic People’s Party v. Moldova,
no. 28793/02, § 67, ECHR 2006-II).
179. The Court must examine with particular care any measure which
appears to operate solely, or principally, to the disadvantage of the
opposition, especially where the nature of the measure is such that it affects
the very prospect of opposition parties gaining power at some point in the
future. Restrictions of this nature curtail the rights guaranteed by Article 3
of Protocol No. 1 to such an extent as to impair their very essence and
deprive them of their effectiveness. The introduction of the prohibition in
the present case shortly before the elections, at a time when the governing
party’s percentage of the vote was in decline (see paragraphs 31-44 above),
further militates against the proportionality of the measure.
180. In the light of all of the above factors, and notwithstanding
Moldova’s special historical and political context, the Court finds the
provisions of Law no. 273 preventing elected MPs with multiple
nationalities from taking seats in Parliament to be disproportionate and in
violation of Article 3 of Protocol No. 1. The respondent Government’s
objection ratione materiae is accordingly dismissed.
TĂNASE v. MOLDOVA JUDGMENT 45
III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
TAKEN IN CONJUNCTION WITH ARTICLE 3 OF PROTOCOL
No. 1
A. The Chamber’s conclusions
181. The Chamber considered that the matters raised under Article 14
related to the same matters as those examined in the context of the
complaint under Article 3 of Protocol No. 1. Accordingly, it concluded that
there was no need to examine the Article 14 complaint separately.
B. The parties’ submissions
1. The Moldovan Government
182. The Government argued that section 21(3) of Law no. 273 (see
paragraph 80 above) did not exclude Transdniestrian residents from the
prohibition on MPs holding multiple nationalities but excluded
Transdniestrian institutions from the scope of the law. The Government
agreed with the Chamber’s finding that no further issues arose under this
head.
2. The applicant
183. The applicant refuted the Government’s explanation of the meaning
of section 21(3), arguing that the text of the Law was self-explanatory and
applied to those living in Transdniestria, and not to elections to
Transdniestrian institutions, which were in any event not recognised by the
Moldovan Government. He maintained that in his view, a separate issue
arose under Article 14 because Law no. 273 expressly excluded its
application to Moldovan nationals living in Transdniestria, although a
number of them also held Russian nationality. There was no justification for
this difference in treatment.
184. The applicant requested the Court to find a separate violation of
Article 14 taken in conjunction with Article 3 of Protocol No. 1.
3. The Romanian Government
185. The Romanian Government also disagreed with the more limited
interpretation which the respondent Government sought to give to
section 21(3) of Law no. 273 on the exception for Transdniestria, which
they argued was contrary to general principles of interpretation. Given that
the respondent Government did not recognise the institutions and authorities
established in Transdniestria, they could not claim that the Law passed in
46 TĂNASE v. MOLDOVA JUDGMENT
Moldova sought to regulate elections to such bodies. They highlighted that
ECRI had criticised the distinction as being unjustified (see paragraph 45
above) and invited the Court to accord some weight to this conclusion
(relying on Cobzaru v. Romania, no. 48254/99, §§ 49-50, 26 July 2007).
186. In conclusion, the Romanian Government invited the Court to find
that there was a violation of Article 14 taken in conjunction with Article 3
of Protocol No. 1.
C. The Court’s assessment
187. The Court notes that there is a dispute as to the correct
interpretation of section 21(3) of Law no. 273, the wording of which is
unclear. It considers that both interpretations advanced by the parties are
possible. It is not the role of this Court to rule on the correct interpretation
of domestic legislation, which is a matter for the domestic courts.
188. In the present case, in the light of the Court’s finding that there has
been a violation of Article 3 of Protocol No. 1, the Court concludes that
there is no need to examine separately the applicant’s complaint under
Article 14 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
189. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols
thereto, and if the internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford just satisfaction to
the injured party.”
A. Damage
190. The applicant did not make any claim for pecuniary or non-
pecuniary damage.
B. Costs and expenses
191. The applicant submitted a detailed claim for costs amounting to
5,021.83 euros (EUR) in additional costs and expenses of the proceedings
before the Grand Chamber, including the costs of attending the hearing. He
provided receipts. Including costs incurred in respect of the proceedings
before the Chamber, the applicant claimed the sum of EUR 8,881.83 in
total.
192. The Government made no submissions to the Grand Chamber on
the applicant’s claim for costs.
TĂNASE v. MOLDOVA JUDGMENT 47
193. The Court notes that the Chamber awarded the sum of EUR 3,860
in respect of costs and expenses incurred in the proceedings before it.
Further receipts have been provided in respect of the subsequent costs and
expenses of the proceedings before the Grand Chamber. The Court
accordingly awards the entire amount claimed.
C. Default interest
194. The Court considers it appropriate that the default interest rate
should be based on the marginal lending rate of the European Central Bank,
to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Decides to join to the merits the respondent Government’s objection
ratione materiae, and dismisses it;
2. Dismisses the respondent Government’s remaining preliminary
objections;
3. Holds that there has been a violation of Article 3 of Protocol No. 1;
4. Holds that there is no need to examine separately the complaint under
Article 14 of the Convention taken in conjunction with Article 3 of
Protocol No. 1;
5. Holds
(a) that the respondent State is to pay the applicant, within three months
from the date date on which this judgment becomes final, EUR 8,881.83
(eight thousand eight hundred and eighty-one euros and eighty-three
cents), plus any tax that may be chargeable to the applicant, in respect of
costs and expenses to be converted into Moldovan lei at the rate
applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until
settlement simple interest shall be payable on the above amount at a rate
equal to the marginal lending rate of the European Central Bank during
the default period plus three percentage points.
48 TĂNASE v. MOLDOVA JUDGMENT
Done in English and in French, and delivered at a public hearing in the
Human Rights Building, Strasbourg, on 27 April 2010.
Michael O’Boyle Peer Lorenzen
Deputy Registrar President